Appendix — Bardes v. Todd
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U1. 398 AUG 31 200%
No.
In The
Supreme Court of the United States
.
DEE ELLEN GARRISON BARDES,
Petitioner,
Vs.
SAMUEL POGUE TODD III,
Respondent.
+
On Petition For Writ Of Certiorari
To The Court Of Appeals
For The State Of Ohio,
First Appellate District Of Ohio,
Hamilton County
+
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
VOLUME II, PAGES 176 TO 442
*
Dee ELLEN G. BaArRDES
Petitioner, pro se
1035 Paxton Ave.
Cincinnati, OH 45208-2828
513/871-4959
No fax available
TABLE OF CONTENTS
Page
VOLUME I
APPENDIX A, First District’s Orders
Merits:
Opinion, Court of Appeals, First Appellate Dis-
trict of Ohio, Filed October 13, 2000......... App. 1
Judgment, Court of Appeals, First Appellate Dis-
trict of Ohio, Filed October 13, 2000......... App. 12
Entry Overruling Motion to Certify Conflict,
Overruling Application for Reconsideration,
Overruling Motion to Stay, and Striking Filing,
Court of Appeals, First Appellate District of
Ohio, Filed November 3, 2000............... App. 13
Entry Overruling Motion for Stay and Application
for Reconsideration, Court of Appeals, First
Appellate District of Ohio, Entered December 1,
be R incase acne wsss sade aweanbhascaesseeie App. 15
Entry Overruling Motion to Compel Clerks to
Redact Private Data Prior to Scanning or Avail-
ing Public Access, or in the Alternative Not to
Scan Documents Containing Private Data, or in
the Alternative to Seal Appendix to Brief,
Pee SUN Es DE o's 0 iis b's nese aces uiee's App. 15a
Certificate:
Entry Striking Filing of May 29, 2001, Entered
Se Sa epee ee te ae App. 15b
Entry Overruling Motion to Certify, Court of
Appeals, First Appellate District of Ohio,
mamegeeG MERTEN ZA, BO. icc cee sence App. 327
il
TABLE OF CONTENTS - Continued
Page
Entry Striking Filing of May 29, 2001, Court of
Appeals, First Appellate District of Ohio,
Entered Jume 15, ZOE ....cscscccecscesecess App. 328
Entry Overruling Motion to Reconsider, Court of
Appeals, First Appellate District of Ohio,
Entered July 13, 2002... ci... cccccccccsscsens App. 329
Entry Striking Filing of July 24, 2001, Court of
Appeals, First Appellate District of Ohio,
Entered August 10, 2001.................... App. 330
Entry of Dismissal, C-010498, Court of Appeals,
First Appellate District, Entered August 17,
7.1) errr ee a as ea App. 334
APPENDIX B, Domestic Relations Orders
Certificate:
Order Dismissing Motion to Strike, Court of Com-
mon Pleas, Division of Domestic Relations,
Entered July 20, 2QGh< (c05iiesese ce eauvesess App. 331
Order Dismissing Plaintiff/Appellant/Peti-
tioner’s Motion Invoking Limited Jurisdiction &
Motion for Findings of Fact on Federal Claims,
Court cf Common Pleas, Division of Domestic
Relations, Hamilton County, Ohio, Entered July
24, 20038 .< . . .s vauks eee App. 332
Order for Submission and Determination Without
Oral Hearing, Court of Common Pleas, Division
of Domestic Relations, Hamilton County, Ohio,
Entered Juma 4, BUG! occ: isiwcenvisncoieess App. 333
TABLE OF CONTENTS - Continued
Page
Merits:
T.d. 345, Decision, Court of Common Pleas, Divi-
sion of Domestic Relations, Entered January 26,
Re peas ou vn csdesy veces.c.... App. 16
Filing Regarding Plaintiff’s Emergency Motion
Filed on January 24, 2000, Court of Common
Pleas, Division of Domestic Relations, Entered
January 26, 2000.......................... App. 18
T.d. 342, Final Decree of Shared Parenting, Court
of Common Pleas, Division of Domestic Rela-
tions, Entered December i. App. 20
Exhibit C, Amended Shared Parenting Plan, Court
of Common Pleas, Division of Domestic Rela-
tions, Filed September 16, 1999.......... App. 22
Mother is court ordered sole decision maker on
children’s educational issues........___ App. 39, #9.2
Exhibit D, Entry Adopting Father’s Proposed Sec-
ond Amended Shared Parenting Plan, Court of
Common Pleas, Division of Domestic Relations,
Filed September 22,1999... App. 54
QMCSO, T.d. 342, O.R.C. §3113.215(B)(5)(f) /
3113.217, Standing Order Allocating Extraordin-
ary Expenses (App. 407)..................__. App. 57
T.d. 341, Judgment Entry Decree of Divorce, Court
of Common Pleas, Division of Domestic Rela-
tions, Entered December 30, 1999........._ App. 67
Exhibit A, Property Settlement Stipulations, Court
of Common Pleas, Division of Domestic Rela-
tions, Filed May 6, 1997................. App. 74
iv
TABLE OF CONTENTS - Continued
Page
Exhibit B, Addendum to Property Settlement Stipula-
tions, Court of Common Pleas, Division of Domes-
tic Relations, Filed August 23, 1999........... App. 117
Exhibit C, Stipulations: Father’s Trusts’ Expert
Witnesses & Testimony, & Post Trial Proffers,
Court of Common Pleas, Division of Domestic
Relations, Filed July 29, 1997............... App. 120
T.d. 340, Entry, Court of Common Pleas, Division
of Domestic Relations, Entered December 30,
SE enn ey ae aa kde Re ees App. 126
T.d. 331, Addendum to Decision on Objections,
Court of Common Pleas, Division of Domestic ~
Relations, Entered November 29, 1999 ...... App. 127
T.d. 330, Decision, Court of Common Pleas, Divi-
sion of Domestic Relations, Filed November 17,
SE coe ke wen chee eee eee Gae App. 130
T.d. 325, Decision on Motion to Set Aside an
Objection to 9/1/99 Findings, Court of Com-
mon Pleas, Division of Domestic Relations,
Fae Mower 1, TIPP aoc s ie ckien App. 132
T.d. 324, Decision Granting Motion to Set Merits
Hearing, Court of Common Pleas, Division of
Domestic Relations, Entered November 1,
RO cab ube ch ehw gn dees eauereeuadetedes el App. 134
T.d. 319, Order for Submjssion and Determination
Without Oral Hearing of Defendant’s Motion to
Set Merits Hearing, Court of Common Pleas,
Division of Domestic Relations, Entered Sep-
NE cis PE on 5k 6 eee eaee snc suneuesans App. 135
V
TABLE OF CONTENTS - Continued
Page
T.d. 318, Entry Adopting Father’s Proposed Sec-
ond Amended Shared Parenting Plan, Court of
Common Pleas, Division of Domestic Relations,
Filed September 22, 1999.........0. App. 136
T.d. 317, Motion to Set Merits Hearing, Court of
Common Pleas, Division of Domestic Relations,
Filed September 21,1999...... App. 137
T.d. 315, Correction to Decision and Orders
Entered of Record September 1, 1999, Court of
Common Pleas, Division of Domestic Relations,
Entered September 3, 1999.......... App. 139
T.d. 314, Decision and Orders, Court of Common
Pleas, Division of Domestic Relations, Entered
vephemite 1, 188. oe App. 141
Decision against Mother’s federal constitutional
claims raised in closing argument (T.d. 193,
3/18/98 which includes written closing arg,
plus five binders of cases docketed together),
overruling obj. with preservation of federal con-
Stitutional violations (T.d. 202, 9/9/98 with
three binders (all filled with constitutional
claims fully argued) timely filed, but belatedly
docketed, T.d. 345, 346, 347)............ App. 150, #7
Holding, Civ. R. 53’s (App. 372) compulsory
requirement compels court to rule on objections
generating reviewable orders on all obj. (T.d.
193) (Civ. R. 7 (App. 367) Procedural defect not
ens ae RE aie App. 144, #5
Entry, Court of Common Pleas, Division of
Domestic Relations, Filed August 23,
sia ETO elie Eline: App. 153
vi
TABLE OF CONTENTS - Continued
Page
T.d. 313, Decision — Plaintiff's Motions of July 24
and 26, 1999, Court of Common Pleas, Division
of Domestic Relations, Filed September 1,
1006... .1civee ee (verde App. 155
Entry Order, Court of Common Pleas, Division of
Domestic Relations, Entered September 1,
LODD on ovccccesscensnuncusvecvauesehupeaeuund App. 158
T.d. 312, Decision, Court of Common Pleas, Divi-
sion of Domestic Relations, Entered September
L, 200B acc cccesdbcdseeei ci eee App. 159
Order, Court of Common Pleas, Division of
Domestic Relations, Entered August 19,
19RD. occcacekvenseseen eee App. 160
T.d. 311, Decision Denying Motion deciding against
federal claims for Preemption, Supremacy, Vague-
ness, FFCCSOA, et al. (mot., T.d. 303), Court of
Common Pleas, Division of Domestic Relations,
Filed September 1, 1999......5.0ccccccccceess App. 165
T.d. 310, Court Requested Changes to Father’s
Proposed Amended Shared Parenting Plan of
November 20, 1998, Court of Common Pleas,
Division of Domestic Relations, Entered Sep-
counber 1, TOG0 sick ecedesccuccoucsaccd senses App. 166
T.d. 285, Decision Denying Motion for Summary
Judgment deciding in favor of Father’s federal Equal
Protection Legislative Classification defense (mar-
ried parents can’t be ordered to pay educational
and college support, so parents splitting up can’t
be ordered to pay) (mot, T.d. 228, 250, 254, 257,
1/29/99; memo, T.d. 257, 2/1/99, p. 2, #1; et al.),
Court of Common Pleas, Division of Domestic
Relations, Entered April 30, 1999............. App. 168
Snail
Vii
TABLE OF CONTENTS - Continued
Page
T.d. 284, Decision, denying certification of class
action, Court of Common Pleas, Division of
Domestic Relations, Entered April 30, 1999. App. 169
T.d. 283, Decision on Allocation of College
Expenses, Court of Common Pleas, Division of
Domestic Relations, Filed April 30, 1999... -App. 170
VOLUME II
T.d. 233, Findings of Fact and Conclusions of Law,
Court of Common Pleas, Division of Domestic
Relations, Entered December ee App. 176
Stipulations, Court of Common Pleas, Division of
Domestic Relations ......................... App-189 _
Stipulations Exhibit A: Shared Time Schedule,
Court of Common Pleas, Division of Domestic
PN is sin dckscivicasrnteenceelac he App. 192
Stipulations Exhibit B: Summary of Father’s Men-
tal/ Psychological History, Court of Common
Pleas, Division of Domestic Relations ....... App. 208
T.d. 201, Magistrate’s Decision with Findings of
Fact and Conclusions of Law, Court of Common
Pleas, Division of Domestic Relations, Entered
PMG 29, TOG ono ceccnenccuuccs.,.. App. 231
T.d. 189, Entry, Court of Common Pleas, Division
of Domestic Relations ...................._ App. 250
T.d. 149, Magistrate’s Order of Common Pleas,
Division of Domestic Relations, Filed July 17,
WO Sas SNEWS eRI MC mee Go ea eh Soa App. 252
Viii
TABLE OF CONTENTS - Continued
T.d. 140, Decision Allocating Parental Rights and
Responsibilities, Court of Common Pleas, Divi-
sion of Domestic Relations, Filed May 23,
I eee Obra ees eure eee ee tera od App.
Extract of T.d. 23, Order Allocating Parenting
Rights and Support, Pendente Lite (75M), Court
of Common Pleas, Division of Domestic Rela-
tions, Entered December 14, 1994........... App.
Extract of T.d. 203, Temporary QMCSO, Entered
ee ae errr rr Te rrrr rr ere re App.
APPENDIX B1, Hamilton County Clerk of Court
G.O.P. Mailing Touts Clerk’s Website.......... App.
Clerk’s Webpage of downloadable documents, DR
02798, Printed January 27, 2000............. App.
APPENDIX C, Supreme Court of Ohio Orders
Entry, 00-2117, The Supreme Court of Ohio, Filed
ge PTET eT PE eRETT Tee eee ee App.
Entry, 00-2117, The Supreme Court of Ohio, Filed
ie | ee re a ee App.
Reconsideration Entry, 00-2117, The Supreme
Court of Ohio, Filed April 4, 2001.......... App.
Certificate:
Entry, 00-2117, The Supreme Court of Ohio, Filed
DEY FE Bo Wa ves hee dsc need wnaseunsbacnss App.
Entry, 00-2117, The Supreme Court of Ohio, Filed
Oe pay pre vn pe) Tre App.
Docket Entries of The Supreme Court of Ohio in
Case 01-1231, Filed July 6, 2001 ............ App.
Page
254
418
421
257
425
259
260
261
335
336
338
——————————e—EEEEE———iO leetiatin »- ree nae a arn the,
ix
TABLE OF CONTENTS - Continued
Page
Earlier Ancillary:
Entry, 00-2254, The Supreme Court of Ohio, Filed
PE FF, B66 ook idhaaeicia a, App. 262
Entry, 00-2254, The Supreme Court of Ohio, Filed
soeectienon: Mo: aan App. 263
Reconsideration Entry, 00-2254, The Supreme
‘Court of Ohio, Filed March a9, S001... 22... App. 264
Entry, 00-545, The Supreme Court of Ohio, Filed
YP BO 66 6b sae os dies akse. . App. 337
Entry, 00-545, The Supreme Court of Ohio, Filed
PO 50h ses i diesel tn, App. 265
APPENDIX D, Statutory Provisions
20 U.S.C. §§1400-1485+, Individuals with Disabil-
ities Educ. Act........................... Inc. by Ref.
26 U.S.C.A. §529 (prepaid college) ............ App. 348
Pending Legislation to 26 U.S.C.A. §529 Quali-
fied State Tuition co ee eS App. 357
28 U.S.C. §1738B, Full Faith And Credit For Child
Support Orders Act ........................ App. 266
United States Public Laws, 103rd Congress -
Second Session, Full Faith and Credit for Child
Support Orders Act, Convening, January 25,
cies i Cate te re Pe eee eit Aen App. 275
28 U.S.C.A. §2403(a-b) (interveners)........... App. 363
Title IV, Social Security Act, 88 Stat. 2351 (1995),
42 U.S.C. §§ 601 et seq., 651 et seg........., Inc. by Ref.
5 U.S.C.A. §551 (federal courts exempted)..... App. 346
x
TABLE OF CONTENTS - Continued
Page
42 U.S.C.A. §405(c)(2)(C)(ii) (use of social security
WUMUETS). onc vc cnccccccsccesccecscssacsscess App. 364
42 U.S.C.A. §405(c)(2)(C)(viii)(I) (use of social
security numbers) ..........--- +e sees eeeees App. 365
5 U.S.C. §552a, Records maintained on individ-
uals, The Privacy Act of 1974............... App. 283
Congressional Findings and Statement of Pur-
pose, Section 2 of Pub.L. 93-579 ..........-. App. 317
Construction of 1988 Amendments, Section 9 of
a | eer rrr err eT Tr Ter er er App. 319
Disclosure of Social Security Number, Section 7
of Pub.L. 93-579, Privacy Act............... App. 320
Disclosural Privacy:
APPENDIX E, United States Constitutional Provisions
United States Constitution Article I, Section 8,
clause 1 (General Welfare, Spending)........ App. 323
United States Constitution Article I, Section 8,
clause 3 (Commerce) .............5sseeeeee- App. 323
United States Constitution Article I, Section 8,
clause 18 (Necessary and Proper)........... App. 323
United States Constitution Article I, Section 10,
clause 1 (Obligation of Contracts)........... App. 323
United States Constitution Article IV, Section 1,
clause 1 & clause 2 (Full Faith and Credit) ... App. 324
xi
TABLE OF CONTENTS - Continued
Page
United States Constitution Article IV, Section y Fe
clause 1 (Privileges and Immunities)........ App. 324
United States Constitution Article VI, clause 2
NTs ha s8 Fuk ou sue rads vedece cee 1 App. 324
AMENDMENTS (rights listed are not intended to be
comprehensive)
First Amendment (rights and freedoms include,
inter alia, freedom of speech, belief, assembly,
free exercise of religion, associational rights,
right to choose, right to maintain the parental
relationship, right to appropriate education,
right to educational benefits, freedom to peti-
tion the government for a redress of grievances,
equal justice, children’s right to the exercise of
the parental, state, nations’ duty to educate,
right to continue familial bonds; right to
Stsnicieas SEL CETTE ae App. 324
Fourth Amendment (civil Privacy expectations
preclude intrusions by state)................ App. 325
Ninth Amendment (unenumerated rights includ-
ing rights imbued via Declaration of Indepen-
dence, Troxel v. Granville (2000) 120 S.Ct. 2054,
—~ (SCALIA, dissenting)).................. App. 325
Tenth Amendment (federalism)................ App. 325
Fourteenth Amendment, Section 1 (Citizenship,
Privileges or Immunities, Due Process, Equal
Protection clauses) (Equal protection, gender
discrimination; personal rights, privileges; leg-
islative classifications; sibling discrimination;
age, wealth, socio economic discrimination;
right to travel) right to equal citizenship,
aii KeaRaA cde oh App. 326
Xl
TABLE OF CONTENTS -— Continued
Fourteenth Amendment, Section 5 (Congressional
Page
powers to enforce by appropriate legislation).. App. 326
Twenty-Sixth Amendment, Section 1 (effective
political participation includes rights to appro-
priate educational benefits from state, nation,
and parents; age discrimination in educational
| er Tree wre Tree rer re. App.
Twenty-Sixth Amendment, Section 2 (Congres-
sional powers to enforce).........--++.+05+5 App.
APPENDIX F Extensions of Time and Select
Communications
Excerpt from The Hannah Report of June 11, 1997
on the Senate Judiciary..................45. App.
Letter of September 9, 1997 to Bardes from George
Voinovich Governor, State of Ohio.......... App.
Letter of September 4, 1998 to Bardes from
Susan Sloan with the Ohio Tuition Trust
PIE os cs 6 cae a App.
Letter of September 18, 1998 to Bardes from The-
odore Adams, Assistant Attorney General, State
en oS oe er a i re App.
Letter of January 13, 1999 to Bardes from Susan
Sloan, Director of Operations, Ohio Tuition
Trust Authority, with copy of Judge Edwards,
Stark Cty, OH, Judgment Entry (ordering
acquisitn. of O.T.T.A., 26 U.S.C. §529, prepaid
326
326
439
430
431
434
college credits in a case where parents agreed) . .App.
436
Letter of March 15, 1999 to Bardes from Loretta
Weinberg, Assemblywoman, District 37, New
Jersey General Assembly ..............+++-- App. 339
Wr et itao
xiii
TABLE OF CONTENTS - Continued
Letter of June 12, 2001 to Clerk, Court of Appeals
of Ohio from Loretta Ruffin, Assistant Clerk,
U.S. Supreme Court ........................ App.
Letter of July 18, 2001 to Bardes from Loretta Ruffin,
Assistant Clerk, U.S. Supreme Court.......... App.
Letter of July 26, 2001 to Bardes from Anthony J.
Steinmeyer, Assistant Branch Director, U.S.
Department of Justice ...................... App.
Student Fees Form, City School District of the City
of Cincinnati, August 2001.................. App.
Procedural Defect Inadequate to Derail Federal
Jurisdiction Over Disclosural ae App.
APPENDIX G, Rules
Fed. R. Civ. Proc. 23 (class ae App.
Civ. R. 7 (motion procedural a App.
Civ. R. 23 (issues class action)..>............. App.
App. R. 30 (clerks’ duties).................... App.
Civ. R. 53 (must rule on Objections)........... App.
APPENDIX H, Ohio Statutes
Court clerks, exempt records
RE App.
Me en cc... ....s...... App
oR EE App
ok App
Page
341
343
345
429
440
366
367
368
371
372
379
. 381
. 383
. 384
. 385
xiv
TABLE OF CONTENTS - Continued
Page
TITLE 31 (two versions+)
R.C. §3103.03(A),(D);(B) [12/99 vers.].......... App. 386
R.C. §3105.011 (equity powers/jurisd.) ........ App. 388
R.C. §3105.10(B) (sep. agrmts.)...............- App. 389
R.C. §3105.21; also (D) [12/99 vers.] .......... App. 390
R.C. §3105.65(B) (powers in dissolutn.)........ App. 392
R.C. §3109.01 (gen. age majority).............. App. 393
R.C. §3109.03 (parental equality) .............. App. 394
R.C. §3109.04(A-B),(E-F),(G),(J) .....-.20 20 ee eee App. 395
R.C. §3109.05(A),(E) [12/99 vers.] (powers) ....App. 399
R.C. §3109.401(A-B) (legislative findings)...... App. 403
R.C. §3113.21(G)(4)(a) (former 3119.88) ...... Inc. by Ref.
RC. SSUIS21S FIZ/99 VORA. 2s nnccaccccsensans App. 405
R.C. §3119.01(C)(4) [3113.215(A)(12)]........... App. 406
R.C. §3119.05(F) [intact 3113.215(B)(5)(f)]...... App. 407
R.C. §3119.24 [intact 3113.215(B)(6)]........... App. 408
R.C. §3119.82 [Revised 3113.21(C)(1)(e)] ....... App. 410
R.C. §3113.21(C)(1)(e) (tax/support) ......... App. 411
R.C. §3105.171(F)(6),(8),(I) (tax/prop.) ....... App. 412
R.C. §3119.86 (legislative emancipation) ...... App. 414
In earlier version (note duration of Authority
Consolidated 3109.05(E) and 3105.21(D);
SIGD RG) MAM) oo os on cid sccdicns ces ssaes App. 415
R.C. §3119.88 (legislative findings) ............ App.
417
otal Wi dese beeen wh aaitee dda -
App. 176
T.d. 233
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
D’Ellen Bardes : Case No: DR 9402798
SS# 270-52-9846 : File No: E194749
DOB: : CSEA
Plaintiff ‘ FINDINGS OF FACT
aaa . AND CONCLUSIONS
OF LAW
Samuel Pogue Todd III
SS# 293-56-1656 JUDGE CUNNINGHAM
DOB: 01/04/54 (ENTERED
Detiadens DEC. 29, 1998)
The above captioned matter came before the Court
pursuant to a pre-decree allocation of parental rights and
responsibilities for the parties two minor children. The
Court issued its parenting decision on May 23, 1997.
Plaintiff /Mother (hereinafter referred to as Mother)
requested the Court issue findings of fact and conclusions
of law. The parties subsequently submitted their pro-
posed findings and conclusions of law, the Court having
granted Mother’s request for extended time to do so. It
was later agreed by the parties that the Court would
consolidate the merits hearing, Mother’s request for an
allocation of college expenses, and any objections to the
Magistrate’s Property decision into one hearing at which
time the Court would issue its findings and conclusions
of law. Mother, however, now denies that she agreed to
this consolidation and argues that she requested the
Court to issue its findings and conclusions of law prior to
App. 177
the Magistrate’s issuance of the property decision. The
Couri is taking this matter under advisement pursuant to
Mother’s request that the Court remand the issue of the
allocation of private schooling expenses for the minor
children to the Magistrate with a copy of the Court's
findings of fact and conclusions of law for the Magis-
trate’s consideration in determining said allocation.
The trial on the pre-decree allocation of parental
rights and responsibilities was held on February 3, 1997.
Mother was present and representing herself pro se.
Father was present and represented by his attorney, Mr.
William S. Abernethy, Jr. Based upon the evidence and
testimony presented and the applicable law, the Court
hereby issues the following-findings of fact and conclu-
sions of law:
FINDINGS OF FACT
The parties were married on May 26, 1988 at Cincin-
nati, Ohio. Two children were born issue of the marriage,
namely: Samuel Pogue Todd IV, born February 19, 1990
and Garrison Bardes Todd, born September 26, 1991.
Mother is forty-two years of age, is in good health,
and is currently not employed outside the home; she is a
student at The University of Cincinnati. Mother resides
with the minor children in the former marital residence
located at 1035 Paxton Avenue in Cincinnati. Members of
Mother’s family also reside in the Cincinnati area.
Father is forty-four years of age, is in good health,
and is employed on a full-time basis. Father resides at 670
App. 178
Reisling Knoll in Cincinnati, a home owned by his Ppar-
ents to whom he pays rent. Father receives the benefit of
someone cooking and cleaning while his parents are in
the home with him which averages approximately seven
months per year. It is Father’s intention to move from his
parent's home at the conclusion of this divorce action.
Father’s family has resided in the Cincinnati area for
many years spanning five or six generations. The parties’
families have also known each other and developed
friendships over the years providing a stable, loving
environment for the children.
Although Father was treated in the past (periodically
between 1987 and 1993) for mental health problems (see
Exhibit B attached hereto), Father’s assertion that since
the parties’ separation he has not suffered with depres-
sion, experienced other mental health problems, and has
not been taking medication for these conditions was not
disputed by Mother. The Parties did stipulate that on
May 15, 1993 an “outburst” by Father resulted in some
damage to the interior of the marital residence. Wife has
no knowledge of any other outbursts by Father since the
parties’ separation. This evidence does not support a
finding that Father’s “outburst” involved domestic vio-
lence.
Following the parties separation on December 17,
1993, Mother filed a Complaint for Divorce on August 30,
1994 and was subsequently designated the residential
parent and legal custodian of the minor children with
Father having specific rights of visitation. Father was
ordered to pay child support and has complied with all
child support orders since that time.
App. 179
On November 10, 1994, Father requested a full par-
enting investigation be commenced. The parents met with
Ms. Ramona Wade, the Court’s Parenting Specialist, who
referred them to mediation. Although the parties repre-
sent that this mediation was court-ordered, the Court did
not “order” the mediation sessions. Mediation was rec-
ommended by the Parenting Specialist. During 1995, the
parents attended mediation sessions with Ms. Bea Larsen
of the Center for Resolution of Disputes. However, medi-
ation was unsuccessful and the parenting investigation
was recommenced by Ms. Leslie Duncan, Parenting Spe-
cialist. Ms. Duncan issued her Pre-Decree Parenting
Investigation report on June 4, 1996 setting forth a recom-
mendation of shared parenting. (Said report is attached
hereto as Exhibit C of the parents written Stipulations.)
The allocation of time with the children has not been
an issue of conflict between the parents and neither par-
ent is requesting a change in the allocation of time. The
parents have communicated and cooperated since their
separation on issues relating to the allocation of time with
the children. Each parent has indicated during the pen-
dency of the divorce action a willingness to incorporate
the allocation of time within a Shared Parenting Plan.
Mother filed her Motion for Shared Parenting and her
proposed Plan on July 10, 1996. The parties, through
counsel, (and subsequently Mother pro se) have
attempted on several occasions to agree on the terms of a
Shared Parenting Plan. In September, 1996 the Court was
informed by counsel for the parties that the parties had
reached agreement on the terms of a Shared Parenting
Plan and the matter was set for submission of the Plan to
App. 180
October 29, 1996. Thereafter, counsel for Mother with-
drew by agreement and the matter was reset for submis-
sion of the Plan or custody pre-trial on December 10, 1996
and custody trial on February 3, 1997. On December 12,
1996, Mother filed her Amended Motion to Order Shared
Parenting with an Amended Shared Plan and Addendum
to Plaintiff's Amended Shared Parenting Plan. This was
followed by Father’s Motion to Order Shared Parenting
on January 7, 1997 together with his Proposed Shared
Parenting Plan.
On January 28, 1997, Mother withdrew her motions
to order shared parenting and requested the Court to
continue the status quo with Mother as sole residential
parent and legal custodian of the minor children. The
parties stipulated during the trial in this matter as to their
respective allocation of time with children (see Exhibit A
of the written stipulations attached hereto).
The sole question before the Court, as acknowledged
by the parties, is whether it is in the best interest of the
minor children for the Court to order shared parenting
and what Plan is to be adopted or whether Mother should
be designated the sole residential parent and legal custo-
dian of the children with continued visitation rights to
Father. All other issues were referred to the Magistrate
for ultimate resolution.
Father requested an order of shared parenting while
Mother argued that she should be designated the residen-
tial parent and legal custodian of the children as the
parties are unable to cooperate and communicate suffi-
ciently to effectuate a viable shared parenting plan. Clos-
ing arguments were submitted by Mother on March 31,
App. 181
1997 and by Father on April 1, 1997. The Court rendered
its decision in this matter by Entry of May 23, 1997.
At commencement of the trial in this mater, the par-
ties submitted written Stipulations with Exhibits A,B, and
C a copy of which is attached hereto and incorporated
herein for all purposes. In addition to the written stipula-
tions, the parties also stipulated on the record to the
following:
1. The parties are unable to agree upon issues of
child support, educational expenses (to include an alloca-
tion of pre-high school, high school and post high school
expenses as well as Mother’s request for reimbursement
of expenses she has paid to date), health insurance /
medical expenses, life insurance, the children’s activities
and allocation of expenses for same, and allocation of the
tax exemptions for the minor children.
2. Mother is to have the same access as Father to
records of the family Trusts involving the children and
Father will execute all documents necessary to effectuate
Mother’s access.
Following the trial in this matter, the parties entered
into a number of agreements involving disposition of,
inter alia, the issues of life insurance; tax exemptions;
medical/health insurance; and Mother’s access to the
Samuel Pogue Todd (Sr.) Inter Vivos Trust, the Samuel
Pogue Todd, Jr. Inter Vivos Trust, and the Samuel Pogue
Todd III Trust. Mother also stated on the record that she
is waiving her right to appeal the Court’s decision
regarding shared parenting of the minor children but she
App. 182
is not waiving her right to appeal the Court's final deci-
sion on allocation of educational expenses for the chil-
dren including college expenses.
The parents are able to communicate with each other
and cooperate in a manner more than sufficient to imple-
ment the terms of the Shared Parenting Plan proposed by
Father and filed with the Court on January 7, 1997 as
modified by stipulation of the parties on February 3, 1997
and as further modified by this court’s order of May 23,
1997. Notwithstanding the parents inability to agree on
all of the child-related financial issues, they have contin-
ued to successfully engage in concerted efforts to main-
tain the children’s sense of well-being and security
throughout this protracted litigation. The parents have
been flexible in making revisions to their parenting time
when necessary for the convenience of the parents and
the best interest of the children. They have been able to
establish agreed upon vacation and holiday schedules
with the children, transportation and religious training of
the children have been addressed by agreement as well as
selection of the children’s health care providers. These
parents have a strong and loving relationship with the
children and are to be commended for not compromising
the children’s relationship with either parent.
The minor children of the parties currently attend
Summit Country Day School and have been so enrolled
since the children were ages three and two, respectively.
Prior to attending Summit Country Day, the children
attended two private pre-schools on a part-time basis.
The parents stipulated that Summit is one of the finest
educational institutions in Ohio. Further, that the chil-
dren have adjusted well to’ the school environment and
App. 183
have performed well in school both behaviorally and
academically. This stipulation, however, is not to be used
at any time as “evidence of Father’s consent to contribute
to the cost of the children’s education at Summit or
another private school.” Both parents acknowledge that
the children are “gifted” intellectually and aca-
demically.
Father does not dispute that it would benefit the
minor children to attend Summit Country Day School
and he has no disagreement with their continued enroll-
ment in and attendance at Summit. However, since com-
mencement of the within action, Father has continually
voiced his opposition to an order requiring him to con-
tribute to the cost of private schooling for the minor
childrerr as it is his position that he cannot afford the
cost of such schooling.
Mother contends that as early as 1991 the parties
agreed that the children should attend private school
and that later Father “reneged” on the agreement. It is
Mother’s position that the withdrawal of Father’s agree-
ment was further evidence of the parties’ inability to
effectively cooperate sufficient to engage in shared par-
enting of the children. As evidence of an agreement on
private schooling, Mother offered Plaintiff’s Exhibit No. 3
and No. 4. The Court admitted these Exhibits and
allowed the parties’ testimony on this issue for the lim-
ited purpose of determining the parties ability or inability
to communicate and cooperate.
The parents considered the question of private edu-
cation for the minor children and attended an open
house at Summit Country Day School prior to selection
ee
App. 184
of the school for the children’s education and Samuel’s
enrollment. Father had built a spreadsheet (see Plain-
tiff’s Exhibit No. 3) to calculate the total cost of school-
ing for the minor children, projected over a fifteen-year
period, at Summit Country Day School and Cincinnati
Country Day School. It was determined by the parties
that Summit was the better financial choice.
Father did not disagree with the decision to enroll
Samuel at Summit, however, he was concerned at that
time about the cost of a Private school education for the
children. Father was then self-employed, earning a mini-
mal income. Although the parties had no mortgage pay-
ment, both Cars were unencumbered, and there were no
short or long term debts aside from family loans to pay
the children’s schooling and loans between the parties,
Father was concerned about the limited stream of income.
Notwithstanding this concern, Father was aware of
Mother’s enrollment of the children at Summit Country
Day School and payment of schooling expenses (see
Plaintiff’s Exhibit No. 4).
The parties have Stipulated that Father has not con-
tributed to the cost of the children’s private school educa-
tion since the parties’ Separation in December, 1993. The
cost of the children’s Summit education for 1996/1997 is
approximately $15,000 per year which Mother testified
will increase at the rate of seven to nine percent per year.
Since the parties [sic] separation, Mother has expended
approximately $36,000.00 for the children’s private
schooling. These funds have been paid from Mother’s
checking accounts, the custédial accounts which Mother
App. 185
maintains for each of the children, and from the chil-
dren’s maternal grandmother, Priscilla Haffner (see Plain-
tiff’s Exhibit No. 4).
The issue of private schooling for the minor children,
allocation of expenses, and Mother’s request for reimbur-
sement from Father for payment of past schooling
expenses is a matter which the parents acknowledged is
referred to the Magistrate for disposition. However, as to
the question of whether the evidence on this matter sup-
ports a finding that the parties are unable to cooperate
and communicate sufficient [sic] to engage in shared
parenting, the Court finds the evidence is insufficient.
In the past, both children have been seen by a speech
therapist, Ms. Janet Marsh of the Speech Pathology
Department of the Children’s Hospital Medical Center
(see Plaintiff’s Exhibit No. 2). Ms. Marsh’s report of
March 22, 1995 states treatment for Samuel was discon-
tinued on January 26, 1995; Samuel’s speech problems
are, in the opinion of Ms. Marsh, resolved. However, as of
July, 1996, Garrison was still in need of on-going speech
therapy which Ms. Marsh testified could require weekly
sessions for a period between six months and a year. No
expert testimony was presented as to Garrison’s current
(February, 1997) need for therapy. The current cost of a
weekly one-hour speech therapy session at Children’s
Hospital Medical Center is $96.00 per hour.
Although Father was not fully supportive of or in
complete agreement with Mother’s position regarding the
“need” for the children’s speech therapy as he believed
they were to young for the therapy, he now acknowledges
that speech therapy was necessary for the children. The
App. 186
only issue is one of allocating the costs for such therapy.
Father submitted the bills given to him to his insurance
provider which claims were subsequently denied. Father
has not paid any portion of the uninsured medical speech
therapy sessions over the past several years. Pursuant to
the Court’s temporary order of health care, the parties are
to equally divide the cost of any uninsured medical
expenses which would include the cost of speech therapy
incurred for the benefit of the children subsequent to the
effective date of the Court’s temporary order. If Mother is
seeking a different allocation of medical expenses, such
request is properly before the Magistrate on a final deter-
mination of issues to be addressed during the property
trial in this matter.
The evidence presented on the issue of speech ther-
apy for the minor children does not support a finding
that the parties cannot communicate or cooperate suffi-
ciently to engage in shared parenting of the children.
Further, the Court does not find that Father engaged in
economic misconduct in his pursuit of a custody investi-
gation, a parenting trial, and resolution of financial issues
upon which the parties were unable to agree. Nor does
the evidence presented support a finding that Father
“unreasonably exacerbated and attenuated the Divorce
Action in order to inflict financial and emotional duress
and hardship on Mother and the children” as alleged by
Mother in her proposed findings of fact.
(Plaintiff’s Exhibits No.’s 1-4 are
incorporated herein for all purposes.)
App. 187
CONCLUSIONS OF LAW
In making a decision regarding the allocation of par-
ental rights and responsibilities, the Court is mandated to
follow the law as set for in Ohio Revised Code Sec.
3109.04. The Court must make its decision taking into
account “that which would be in the best interest of the
children”. The factors which the Court must consider
when determining the best interest of a child are set forth
in Sec. 3109.04(F)(1). When determining whether shared
parenting is in the best interest of the children the Court
shall apply the law as set forth in Sec. 3109.04(F)(2) and
the referenced sections set forth therein.
The Court has fully complied with its legal mandate
and finds that shared parenting is in the best interest of
the minor children. The Court approves Father’s shared
parenting plan as modified by stipulation of the parties
and with the modifications set forth in the Court’s order
of May 23, 1997.
The parties are loving, caring parents who have com-
municated and cooperated with each other during a diffi-
cult period to provide their children with a sense of well-
being and a secure home environment. The parties live in
close proximity to each other and have continued to
encourage love and respect between the children and the
other parent. The children have adjusted very well to
their community and school environment. Their extended
families live in the Cincinnati area and are involved in
the children’s lives.
While the parents have agreed upon many matters
affecting their children, the major areas of disagreement
App. 188
involve financial matters. Primarily, the private school-
ing and education of the minor children including col-
lege expenses. It is undisputed that the children are
“gifted” and would benefit from private schooling.
However, the question of financing this pre-college edu-
cation is at issue and is a matter the parties acknowledge
is to be referred to the Magistrate for disposition.
Another and equally compelling question is whether
the parents can be court-ordered, without their agree-
ment, to contribute to the cost of a college education for
the children. This matter is to be heard by the Court.
While the parties are unable to agree on all matters of
shared parenting, the Court does not find that their dis-
agreements so poison the atmosphere as to prevent
shared parenting of the children. The children’s interests
are best served by the continued involvement of both
parents in their lives to the greatest extent and with as
much communication and contact between the parents as
is possible.
/s/ Penelope R. Cunningham
Penelope R. Cunningham
Judge
App. 189
[T.d. 233]
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
D’ELLEN BARDES : Case No. DR9402798
SSN: 270-52-9846 : File No. E-194749-0-7
DOB: 7/21/56 : C.S.E.A. No.
Plaintiff ‘ Judge Cunningham
- ’ Magistrate Murphy
SAMUEL P. TODD, III STIPULATIONS
SSN: 293-56-1656
DOB: 10/9/54
Defendant
The parties hereto enter into the following Stipula-
tions for the purpose of the hearing to be held herein on
the 3rd day of February, 1997.
1. The parties were married on the 26th day of May,
1988 and two (2) children have been born of the marriage,
namely Samuel Pogue Todd IV, born February 19, 1990 (6)
and Garrison Todd, born September 26, 1991 (5).
2. The parties have lived separate and apart since
December, 1993.
3. The parties agree as to the allocation of parental
time with the children. That allocation of time is set forth
on the Schedule attached hereto as Exhibit “A”.
(a) Each party stipulates that the other parent is
a fit and proper parent and custodian of the children and
that each is capable of caring for the children and meet-
ing the needs of the children. This Stipulation shall not be
Fe
App. 190
used at any time as evidence of Mother’s consent that
Father could be an appropriate sole custodian of the
minor children.
(b) One issue for this Court to determine is
whether the allocation of parental time with the children
is to be accomplished within the framework of the Shared
Parenting Plan as proposed by Father, or by Mother being
designated as the residential parent and legal custodian
with Father having parenting time or visitation pursuant
to the allocation of time as stipulated.
(c) Another issue to be considered by this Court
involves the ability of the parents to communicate and
cooperate effectively within the framework of a Shared
Parenting Plan in order that they might effectively carry
out the purpose of a Shared Parenting Plan.
4. The parties stipulate that Exhibit “B” attached
hereto is a summary of Father’s mental /psychological
history, involving diagnosis, treatment and prognosis of
Father’s situation. For purposes of the hearing of Febru-
ary 3, 1997, this history will be used for the Purpose of
attempting to determine the issue of custody and/or the
ability of the parties to communicate and cooperate effec-
tively within the context of a Shared Parenting Plan,
pursuant to all applicable statutes.
5. The parties further stipulate:
(a) The children are currently enrolled in the
Summit Country Day School with Samuel in grade one
and Garrison in Kindergarten.
(b) The children have adjusted well to the
school environment. ,
App. 191
(c) The children have performed well in
school both behaviorally and academically.
This Stipulation shall not be used at any time as
evidence of Father’s consent to contribute to the cost of
the children’s education at Summit or another private
school.
6. The parties further stipulate that Exhibit “C”
attached hereto is the report of Leslie Duncan dated June
4, 1996, including her recommendations. The parties do
not stipulate to the accuracy of all facts as set forth in
Exhibit “C”. This Stipulation shall not be used at any time
as evidence of Mother’s consent to enter into a shared
parenting arrangement with Father. This Stipulation shall
not be used at anytime as evidence that Mother is in
support of Ms. Duncan’s recommendation for shared par-
enting.
-~/s/ D Bardes
D’Ellen, Plaintiff
Respectfully submitted,
STRAUSS & TROY
By: /s/ William S. Abernethy, Jr.
William S. Abernethy, Jr. 0002137
Attorney for Defendant
2100 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202-4186
(513) 621-2120
a Ore *e =
App. 192
[T.d. 233]
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
D’ELLEN BARDES
a/k/a : CASE NO. DR9402798:
D’ELLEN BARDES TODD : File: E 194749-0-7
SS #: 270-52-9846 > C.S.E.A.:
DOB: 07/21/56
or : Judge
seal : Penelope Cunningham
vs. : Magistrate
SAMUEL POGUE : em Maphy
DD I
ng y! 1 : STIPULATIONS EXHIBIT
SS #: 293-56-1656
: SCHEDULE
Defendant
1 The parties hereto enter into the following Stipula-
tions for the purpose of the hearing to be held herein
on the 3rd day of February, 1997:
1.1 This line has been intentionally left blank
1.2 Allocation of Time With Each Parent
1.2.1 Routine Schedule
1.2.1.1 Father shall share time with the Parties’
minor children as follows:
1.2.1.1.1 Every other weekend from 6:00 PM on
Thursday to the following Monday
morning when Father shall deliver
them either to school and or to the
location mutually agreed upon
whether: the Mother’s home, athletic
1.2.1.1.2
1.2.1.1.3
App. 193
club, child care or other geograph-
ically-reasonable destination between
8:00 AM and 8:15 A.M.
Every other Thursday from 6:00 PM
until Friday at 6:00 PM. when Father
shall deliver the children to the loca-
tion specifred-by—Mother [mutually
agreed] [DB SPT] whether the
Mother’s home, athletic club, child-
care or other geographically-reason-
able destination; in the event that
Mother plans to take the children out-
of-town over the weekend, with agree-
ment of Father Mother may pick up the
children during/after school on Friday.
Mother shall drop the children off at
Father’s home, athletic club, child-care
or other geographically-reasonable
destination mutually agreed upon on
such Thursday evenings, provided
however that Father’s home is located
within seven miles of Mother’s home;
in the event that Father would relocate
to a new residence which is seven
miles or more away from Mother’s res-
idence, Mother shall optionally elect
whether to drop off the children at
Father’s new residence or at a geo-
graphically reasonable and mutually
agreeable destination; Father shall
have such same options for return of
children in the event that Mother relo-
cate to a new residence, which
Mother’s new residence is not physi-
cally located within seven (7) miles of
App. 194
Father’s Residence. such-present-tesi-
graph-3-t [SPT DB]
1.2.1.1.4 All other time allocated below to
Father for vacations and holidays.
1.2.1.2. Mother shall share time with the Parties’
minor children at all times not specifically
allocated herein to Father.
1.2.1.3 Each party shall be responsible for deliver-
ing the children to the mutually agreed
upon location to end his or her time with
the children, unless specifically agreed to
otherwise or otherwise provided herein.
The parent who has the children at the
time shall be responsible for providing
transportation for the children to and from
school and activities unless other arrange-
ments have been made by the parties.
1.2.2 Vacations & Holidays
1.2.2.1 Vacations
1.2.2.1.1 Each parent is entitled to take the par-
ties’ minor children for a maximum of
four weeks of vacation during each
year, with no vacation to exceed two
weeks at a time; vacations may be
spent at any location including each
parent’s respective homes or else-
where. A maximum of three of such
four weeks may be exercised by either
parent during the children’s summer
school vacation which generally occurs
in the period, June through August.
Each parent shall give the other a mini-
mum of thirty days’ written notice of
his or her intent to exercise this right,
1.2.2.1.2
1.2.2.1.3
App. 195
including the dates and places for the
scheduled vacation(s), if known. The
parties acknowledge that this notice is
not required for (a) those weekends or
weekdays either parent may choose to
take the children away during his/her
routine schedule set forth alove and
(b) during his/her holiday schedule/
extended periods as set forth below.
Each parent agrees that he/she shall be
flexible regarding requests for changes
in the routine schedule preceding and
or following any vacation, in order to
accommodate the non-vacationing par-
ent’s need (a) to ready the children for
such vacation and or (b) to recover
from the children’s extended absence
by spending extra time subsequent to
such vacation with the children and or
(c) for any other reasonable reason not
specifically set forth herein. It is the
parties intent in this paragraph that
the non-vacationing parent shall not be
unduly penalized.
Each parent has annually alternating
first-choice on spending vacation time
with the children during each major
school break, including Spring break,
Christmas Break, and Summer vaca-
tion break; as such if Father elected to
take the children on vacation during
Christmas break one year, Mother
would have the first choice of spend-
ing Christmas vacation time with the
children during the following year.
App. 196
1.2.2.2 Holidays
1.2.2.2.1 Each party shall exercise his/her right
to share time with the children on holi-
days, as follows:
1.2.2.2.1.1
1.2.2.2.1.2
1.2.2.2.1.3
Each parent shall have the
children on the following
holidays:
In even numbered years,
Father shall have the chil-
dren on New Year’s Day,
President's Day, Memorial
Day, Labor Day, Thanks-
giving, Christmas Eve, and
Christmas Day Late and
Mother shall have the chil-
dren on Martin Luther
King Day, Easter, Fourth of
July, and Christmas Day
Early. In odd numbered
years, Mother shall have
the children on all holidays
that Father had the chil-
dren in even numbered
years, and Father shall
have the children on all
holidays that Mother had
the children in even-
numbered years.
Unless the parties other-
wise agree, they shall each
be entitled to spend rea-
sonable time with both
children on each child’s
respective birthday. Each
parent agrees to advise in
advance the other parent of
App.
1.2.2.2.1.4
1.2.2.2.1.5
1.2.2.2.1.6
197
dates, times, locations, and
children-invitees to cele-
brations planned on or
around the dates of the
minor children’s birthdays;
this provision, however,
does not imply that the
other parent must be
invited to attend such cele-
brations, only that he or
she be timely advised in
full of their nature.
In the event that the par-
ties would elect to mutu-
ally host a birthday party,
the parties agree to equita-
bly share in the costs
incurred; should either
parent be invited and sub-
sequently attend a celebra-
tion hosted by the other
parent, this, in itself would
not be construed as an
agreement to share the
costs incurred.
Father shall have the chil-
dren on Father’s Day from
10:00 a.m. to school or until
8 a.m. the next morning.
Mother shall have the chil-
dren on Mother’s Day from
10:00 a.m. to school the
next morning.
On or near the anniversary
date of each parent’s birth,
each parent shall have the
1.2.2.3
1.2.2.4
App. 198
option of whether or not to
spend reasonable time
with the children on or
near each parent’s respec-
tive birthday. The non-
birthday parent shall
accommodate the birthday
Parent’s “personal holi-
day” preferences and
schedule.
The following hours shall be in effect for
all holidays if they fall on a day other than
one that is normally that parent’s day to be
residential parent: The Holiday Period
Shall be from 10:00 a.m. to 8:00 p-m. for
Martin Luther King Day and President's
Day. The Thanksgiving Holiday Period
shall be from Wednesday at 6:00 p.m. to
Friday at 8:00 p.m. The Easter Holiday
Period shall be from Saturday at noon
until Sunday at 8:00 P.M. The New Years
Holiday Period shall be from 12/31 at 6:00
p.m. to 1/1 at 8:00 p.m. The Fourth of July
Holiday Period shall be from 10:00 a.m. on
the Fourth of July to the next day at 8:00
a.m.; The Memorial Day Holiday Period
shall be from Sunday at noon to Monday
at 8:00 p.m.; the Labor Day Holiday Period
shall be from Sunday at 6:00 p.m. until
Monday at 8:00 p.m.
The Christmas Eve Holiday Period shall be
from 12/23 at 6:00 p-m. to 12/24 at 9:00
p-m.; the Christmas Day Early Holiday
Period shall be from 12/24 at 9:00 p-m. to
12/25 at 4:00 p-m.; the Christmas Day Late
App. 199
Holiday Period shall be from 12/25 at 4:00
p-m. to 12/27 at 6:00 p.m.
2 Miscellaneous Shared Time Provisions
2.1
2.2
2.3
The provisions set forth above relating to the
times in which each parent is to share time with
the children shall not preclude the parties from
the ability to alter said periods by mutual agree-
ment. The parties shall make every reasonable
effort to accommodate each other’s schedule, and
they will cooperate in the utmost good faith to
minimize the difficulties necessarily involved in
the upbringing of the minor children where the
parties are living separate and apart from each
other, and in carrying out their obligations under
this Schedule, to the end that the relationship of
the children with both parents shall be as harmo-
nious as possible. The parties also recognize, that
because this schedule potentially applies many
years into the future, it may be necessary from
time to time to adjust the time allocation set forth
in this Schedule.
Both Father and Mother shall use best efforts to
encourage the other parent’s relationship with
the children. In the event a change in schedule is
necessary, the party who needs to change the
schedule shall notify the other as soon as possible
so as to minimize the conflict and/or problems
associated with said schedule change. In the
event of a conflict, the following is the order of
preference: 1st: Holidays; 2nd: Vacations; 3rd:
Weekends; 4th: Midweek Days.
Each party states that neither has been convicted
of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an
abused child or a neglected child, nor has he/she
previously been determined, in a case in which a
i i.
App. 200
child has been adjudicated an abused child or a
neglected child, to be the Perpetrator of the abu-
sive or neglectful act that was the basis of the
adjudication. Neither parent has ever been a
party to a civil or criminal case or investigation
concerning child abuse, child neglect or domestic
violence regarding the parents’ minor children.
“Abe esc Mahl
2.4 When either parent will be gone overnight,
regardless of the age of the children, the other
parent shall be afforded the Opportunity to exer-
cise overnight parenting time. If either parent is
more than ninety minutes late in returning / pick-
ing up the children without calling to make rea-
sonable arrangements and or without just cause
may be subject to contempt and or may forfeit
that period of time with the children; exception
shall be made if, and only if, the tardiness of the
Parent not sharing time with the children is for
just cause and the parent who is sharing time
with the children receives both prompt notifica-
tion and a reasonable estimated modified
arrival/departure time.
2.5 In the case of an unexpected extended illness,
which would require either child to stay home
from school, both parents agree to be flexible and
available, if needed to stay home with a child or
children or otherwise equitably accommodate
such iliness during its duration, even if the ill-
ness occurs during days when the children
would usually be with the other parent, which
care shall be administered in each parent’s own
residences or in a medical-facility, but not in the
other parent’s residence, except in the unusual
event that an ill child should not be physically
relocated.
2.6
2.7
2.8
29
App. 201
Father and Mother agree to attempt to employ
only non-smoking child care personnel to watch
over the minor children. In the event that a child
care provider does smoke, he or she must agree
not to smoke whatsoever while a child is in his or
her care.
Mother and Father shall continue to live separate
and apart from the other, as they have been doing
since December 17, 1993. Mother and Father shall
each go his or her own way without direction,
authority, control or molestation from the other,
the same as though unmarried and each further
agrees not to interfere with the other in any
manner whatsoever. Mother may reside at such
place or places, subject to-Sectior’3; [DB SPT] as
she may elect and may engage for her own sepa-
rate use or benefit in any employment, business,
avocation, relationship and or profession which
she may deem advisable. Father may reside at
such place or places, subject-to-Section 3; [DB
SPT] as he may elect and may engage for his own
separate use or benefit in any employment, busi-
ness, avocation, relationship and or profession
which he may deem advisable.
Each parent currently provides and shall con-
tinue to provide living accommodations such that
their minor children shall have a bedroom sepa-
rate from each parent in his/her respective resi-
dence during each child’s minority.
If any child becomes seriously ill or injured or
incurs a non-medical emergency during the time
that such child is with either parent, that parent
shall notify the other as soon as is practical and
shall give to the other the details of such illness,
injury, or emergency.
App. 202
2.10 It is the intention of the Parties to have free and
2.11
ongoing access to the minor children by tele-
Phone at all reasonable times when each child is
with the other parent. It is also the intention of
the parties to allow the children to have free and
ongoing access to the other parent by telephone
at all reasonable times when each child is with
the other parent. The parent then sharing time
with the minor children should neither discour-
age nor interfere with any telephone contact initi-
ated or desired by a child.
Each parent is responsible for Providing trans-
portation of the children as specifically set forth
herein unless otherwise agreed to by the parents,
except in the event that either parent elect or be
obligated to temporarily or to permanently relo-
cate to a community outside the Greater Cincin-
nati area.
The rest of this page is intentionally blank.
App. 203
[T.d. 233]
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
D’ELLEN BARDES
a/k/a D’ELLEN
BARDES TODD
SS #: 270-52-9846
DOB: 07/21/56
Plaintiff
Vs.
SAMUEL POGUE
TODD III
SS #: 293-56-1656
DOB: 10/9/54
Defendant
CASE NO. DR9402798:
File: E 194749-0-7
C.S.E.A.:
Judge Penelope Cunningham
Magistrate William Murphy
)
)
)
)
;
) STIPULATIONS
)
)
)
)
)
)
)
EXHIBIT B: SUMMARY OF
FATHER’S MENTAL/
PSYCHOLOGICAL
HISTORY
The parties hereto enter into the following Stipula-
tions for the purpose of the hearing to be held herein on
the 3rd day of February, 1997: The following Summary of
Father’s Mental/Psychological History accurately repre-
sents the diagnoses, treatments administered, and known
prognoses of Mr. Samuel P. Todd III’s history with such
psychiatric practioners:
-—
1 Dr. Charles Feuss, M.D., Psychiatrist
(Mr. Todd saw Dr. Feuss infrequently during the years
1987, 1990, 1992, and 1993).
1.1 In 1987, Dr. Feuss initially saw Mr. Todd, Diag-
nosis: Depression.
App. 204
1.2 In 1990, diagnosis: Depression; Treatment Pro-
zac. Prognosis: Unknown,
pe a be. eos os ehoc b>. re a he ee ee o
4VUuuUuw 40iTiIvUe ty SUSIOLOCCTULY OMItiiitrTster 40ic 4itUC Ur”
eetren-
[SPT /DB]
1.3 In 1992, Diagnosis: Panic Disorder of Fugue
States; Psychogenic Fugue (disorder where there
is sudden, unexpected travel away from home or
customary work locale with assumption of a new
identify and inability to recall one’s previous
identity). Treatment: Xanax. Prognosis:
Unknown,
’ ¢ : "a : hi 15 bi
1.4 In 1993, Diagnosis: Dissociative States with
Reactions (neurosis which helps Mr. Todd to
handle stress); Schizoid Personality (disorder
where there is a pervasive pattern of indifference
to social relationships and a restricted range of
emotional experiences). Treatment: Xanax. Prog-
nosis: Unknown,
[SPT /DB]
[SPT /DB]
2 Dr. Clayton Gotwals, M.D., Psychiatrist:
(Mr. Todd saw Dr. Gotwals four times per week during 1991).
2.1 From February 1, 199] through August, 31, 1991,
Samuel Pogue Todd III Participated in at least
Ninety-three (93) Separate sessions of Psycho-
analysis therapy with Clayton K. Gotwals, M.D.
at either the Cincinnati Center for Psycho-
analysis, Inc., 3001 Highland Avenue, Cincinnati,
OH 45219, 513/961-8846 or at Christ Hospital,
Cincinnati, OH 45219. Diagnosis: Depression,
ye
App. 205
Psychogenic Fugue. Treatment: Xanax; Prognosis:
Unknown.
On June 3, 1991, Dr.. Clayton Gotwals, M.D.
admitted Mr. Todd to the psychiatric ward at
Christ Hospital. Upon admission, Dr. Gotwals
diagnosis was as follows:
2.2.1
Fe a
hb
2.2.4
YB
pie Pe
Axis I. Major depression;
Axis II. Personality disorder, not other-
wise specified;
Axis III. The patient is physically
healthy.
Treatment: Desipramine; Pamelor.
Upon discharge from Christ Hospital on
June 7, 1991, Dr. Gotwals made the fol-
lowing Discharge Diagnoses:
2.2.5.1 Depressive Reaction;
2.2.6. Personality disorder, not other-
wise specified.
Upon discharge from Christ Hospital,
the following Treatments were pre-
scribed as follows: Pamelor; Continue
four times weekly psychoanalysis with
Dr. Gotwals. :
—
he hes
App. 206
[T.d. 233]
STIPULATIONS, EXHIBIT “C”
PRE-DECREE PARENTING INVESTIGATION
RE: Todd, Samuel III & D’Ellen
CHILDREN: Samuel, DOB: 02-19-90
Garrison, DOB: 09-26-91
A-9402798 E-194749
PARENTING SPECIALIST: Leslie Duncan,
MSSW
DATE ASSIGNED: March 12, 1996
DATE COMPLETED: June 4, 1996
COURT STATUS:
Mr. and Mrs. Todd reluctantly agree on a shared parent-
ing arrangement regarding the children. They are not in
agreement as to how educational and medical expenses
will be paid. A custody investigation was ordered.
App. 207
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App. 208
[THIS PAGE INTENTIONALLY LEFT BLANK]
App. 209
[THIS PAGE INTENTIONALLY LEFT BLANK]
App. 210
[THIS PAGE INTENTIONALLY LEFT BLANK]
App. 211
BACKGROUND:
Mr. and Mrs. Todd met in 1986 at a social function
attended by family members. Mrs. Todd was self
employed at the time doing publishing work and Mr.
Todd was working for a large accounting firm. The cou-
ple dated two years prior to marrying in May 1988. Both
Mr. and Mrs. Todd owned homes in the Hyde Park area.
They moved into Mr. Todd’s home and used Mrs. Todd’s
home for rental property. Prior to marrying, Mrs. Todd
briefly saw a Charles Fuess, MD, psychiatrist, for prob-
lems surrounding her work.
Shortly after the marriage, Mr. Todd’s job transferred to
Ann Arbor, Michigan. The couple planned to start a fam-
ily after the move. Mrs. Todd had Samuel in February
1990. The couple returned to Cincinnati so that Samuel
could be born as an eight generation Cincinnatian. Mrs.
Todd quit working after the move and she spent her time
taking care of the family and maintaining their homes as
rental property in Cincinnati. Mr. Todd had an expense
account through his employment which Mrs. Todd man-
aged. Four months after Samuel’s birth, Mr. Todd was
fired because of discrepancies in his expense accounts.
Mr. Todd was asked to repay the amount he owed but
Mrs. Todd felt the expenses were appropriate so he
refused. This caused a great deal of anguish for the
App. 212
couple in that Mrs. Todd felt Mr Todd blamed her for his
discharge.
The couple then returned to Cincinnati and they sold
Mrs. Todd’s property and she purchased Mr. Todd’s
home. She purchased the home with the equity she had in
her other home and moneys she had received in inheri-
tance. The home is owned by Mrs. Todd. Additionally the
couple started a company know [sic] as Todd EDP Audit
Company. Mr. Todd had never been self employed and
Mrs. Todd had primarily worked for herself. The couple
were not suited to working jointly in this type of occupa-
tion. The stress of being self employed was overwhelm-
ing to Mr. Todd. Mrs. Todd was much more suited to this
type of occupation but she was Primarily being a full time
housewife. Further stress was caused by Mr. Todd com-
muting to his contractual employer in Pennsylvania on a
weekly basis spending the majority of the time there. Mr.
Todd indicated the stress became overwhelming for him.
He was unable to cope with Mrs. Todd’s critical attitude
regarding him and he became uncomfortable at home.
Essentially Mrs. Todd depended on Mr. Todd to help with
the children so that she could complete her part of the
work associated with the business. They would Switch off
tasks when Mr. Todd returned. Instead of returning
home, Mr. Todd would disappear whenever the stress
became too overwhelming. He would be gone for days at
a time. During this time, Mrs. Todd became pregnant
with Garrison and she gave birth in September 1991.
Mrs. Todd reported that during 1991 though the time they
Separated in 1993 she filled [sic] numerous missing per-
Sons reports with the police because Mr Todd had disap-
peared. Mr. [sic] Todd initiated therapy for Mr. Todd with
App. 213
her former psychiatrist, Dr. Feuss, as a means cf helping
with the problem. He saw him off an on through 1993.
Mr. Todd also saw a Clayton Gotwall, MD, psychiatrist in
1991 essentially for the same reason. The couple [sic]
problems were further complicated by Mrs. Todd trying
to control Mr. Todd’s behavior. When Mr. Todd would try
to leave the home, Mrs. Todd would attempt to stop him.
This caused physical altercations between them. Mr. Todd
attempted to distance himself from Mrs. Todd by living
separately in the basement. The couple maintained this
living arrangement for a year prior to separating perma-
nently in December 1993. Mr. Todd moved to his parent’s
home and Mrs. Todd remained in the marital home with
the children.
Mrs. Todd filed for divorce in August 1994 and she was
designated the residential parent. The temporary visita-
tion arrangements are that the children would be with
their father every week from 6 PM on Thursday until 6
PM on Friday. On alternate weekends they are with their
father from 6 PM on Thursday until 8-AM on Monday
before school. This arrangement has been satisfactory to
both parents and they have not had any problems with
the arrangement. After the separation, the couple dis-
solved their joint business venture and Mr. Todd went to
work for his current employer. Mr. Todd indicated that he
has not had any further need for psychiatric care because
he is no longer living with Mrs. Todd.
CURRENT SITUATION:
Mr. Todd lives at 670 Reisling Knoll in the Mt. Lookout
area. He is residing with his parents, Samuel Todd, Jr. and
Emily Todd. His father is a retired doctor. Mr. Todd works
cil ae
App. 214
for Computer Horizons as a contract programmer. He
works from 8:30 AM to 5:30 PM and made approximately
$65,000 last year. Also, Mr. Todd is self employed as a
computer consultant. His hours vary from one to sixteen
per week and he makes $75.00 per hour.
Mrs. Todd lives at 1035 Paxton in the Hyde Park area.
Residing with her are Samuel, age six and Garrison, age
four. Mrs. Todd is not employed. She receives child sup-
port and alimony. Additionally she has income from
Stocks she owns in the amount of approximately $9,000
annually.
CHILD SUPPORT STATUS:
Mr. Todd is ordered to pay $1078.20 per month in child
support. His child support payments are current. He is
also ordered to pay $275.00 per month is [sic] alimony.
There is an arrearage of $483.01 on this account. The
arrearage is mostly due to non-payment of the poundage.
THE FOLLOWING FACTORS WERE CONSIDERED IN
MAKING THE RECOMMENDATIONS:
1. The wishes of the parents re arding the allocation
Both Mr. and Mrs. Todd are essentially in agreement with
the current parenting schedule they are following. The
arrangement has been adhered to for the past two years
and the children are comfortable with the arrangement.
The problem with finalizing the plan has to do with costs
around medical expenses and educational expenses. Mrs.
App. 215
Todd believes that Mr. Todd should provide for the chil-
dren’s private educational expenses. Mr. Todd indicated
that he would have no problem doing so as long as he
had the money to provide for this expense. Mr. Todd is
paying his child support and spousal support. He indi-
cated that there is not additional moneys available to
provide tuition for both children to attend private
schools. Samuel, age six and Garrison, age four, attend
Summit County Day School. Samuel was in kindergarten
this year and Garrison attended preschool. Mrs. Todd has
paid the tuition with money she has received as an inher-
itance. Mrs. Todd believes that there are moneys available
to provide the children with private education held in
trust by Mr. Todd’s family. Mr. Todd indicated that there
is approximately a little more than thirty thousand dol-
lars available and that this amount may in the future only
cover part of their college education. Mr. Todd likes the
school the children are attending. He is in disagreement
as to how this expense will be paid.
Mrs. Todd questions whether shared parenting would
work for them given the fact that Mr. Todd had emotional
problems during the marriage that affected their ability to
discuss problems. She believes that he will never be able
to work cooperatively with her in making joint decisions.
Mrs. Todd indicated that Mr. Todd agreed to sending the
children to Summit County Day School when they were
together but he has since reneged on his promise. Further
she believes that they have had problems regarding dif-
fering opinions as to Garrison needing speech therapy.
Mrs. Todd stated that Mr. Todd refused to pay for the
therapy and that she is paying this expense. Mr. Todd
indicated that the speech therapy was not paid for by his
App. 216
insurance company because they said Garrison was too
young for the service and that they would not pay for
Pre-speech problems. Mrs. Todd stated that if they could
set specific requirements regarding the educational
expenses and medical expenses in the shared parenting
plan then she believes that they could have a shared
Parenting plan.
Mr. Todd believes that Mrs. Todd goes “overboard” on
many issues regarding the children. He indicated that he
never won an argument with her when they were mar-
ried and that he tries to avoid conflicts with her. He
believes that she is being unrealistic in her expectations
regarding the children’s educational expenses. Mr. Todd
indicated that her insistence that Garrison have speech
therapy shows that she tends to take issues to the
extreme. He does believe that she has the children’s best
interest at heart and that she will always consider their
needs. Mr. Todd would like to have the children more
often but he indicated that his work schedule will not
allow him the additional time. He believes that they
could work out the issues regarding shared Parenting if
they can come to some agreement on educational and
medical expenses.
2. The children’s interaction and interrelationship
with parents, siblings and others
During the marriage, Mrs. Todd has been the children’s
primary caretaker. She has taken care of the majority of
their physical and emotional needs. She has taken them -
to their doctor’s appointments and cared for them when
they have been ill. She is Primarily involved with their
App. 217
school activities. Mrs. Todd is not employed and she
exclusively invests her time in meeting their needs. The
children are bonded to her. They are conformable [sic]
around her and they depend on her to care for them.
Since the couple separated in December 1993, the chil-
dren have been spending every Thursday night with their
father and every alternate weekend with him. The chil-
dren interacted affectionately with their father and they
appear comfortable in his care. They are comfortable
spending extended periods of time in their paternal
grandparent’s [sic] home. Both children reported a warm
and affectionate relationship with their paternal grand-
parents.
Both children reported participating in enjoyable activ-
ities with their parents. Mr. Todd has a membership in the
Cincinnati County [sic] Club where they participate in
tennis, swimming and squash lessons. Neither child has a
good concept of divorce but each child realizes that their
parents will no longer be living together. Mr. and Mrs.
Todd have not involved the children in their arguments
regarding the divorce. They have tried to remain cordial
for the children’s benefit. Both Samuel and Garrison
understand that their parents are arguing over whether
or not they can attend Summit County Day School.
Samuel and Garrison have a normal sibling relationship.
They are close in age and they are closely attached to one
another. Both children are polite, well mannered children.
. App. 218
3. The children’s adjustment to home, school and the
community
Samuel, age six, completed kindergarten at Summit
County Day School. His teacher, Ms. Pohl, provided a
detailed description of his progress in school. She
reported that “Samuel continually operates well one
grade above his chronological age in all academic areas.”
She indicated no problems [sic] «reas except articulation
which was a weakness but she indicated that he has
significantly improved in that area. She believes that his
articulation needs to be monitored on a yearly basis. As
to his peer relationship, Ms. Pohl reported that Samuel
relates well to his peers and that he often assumes a
position of leadership within his class. (See Attachment)
Garrison, age four, attended Pre-school at Summit
County Day School. He has been attending since he was
three years old. Ms. Pohl is also his teacher. She reported
that he is a bright child and that he is doing outstanding
in all areas. As to his relationship with others, Ms. Poh]
commented that Garrison is [sic] shy, quiet child but that
he relates well to his peers and teachers. She indicated
that he relies on his brother for emotional support when
things bother him. Further she commented that he some-
times has problems with the transition from one house-
hold to the other. Ms. Pohl reported that Garrison has
some articulation problems and that he is receiving
speech pathology.
She is of the opinion that his problems will disappear
with age and therapy. (See Attachment) In talking with
Garrison, he is easily understood and he had no difficulty
expressing himself.
App. 219
Ms. Pohl reported that Mrs. Todd has been actively
involved in the children’s education. She provided a
statement as to the number of activities she has been
involved in with the school. One of her primary contribu-
~ tions was to design and conduct an in-class program for
the children. She has also been a visiting computer
instructor and she has helped the administration by pro-
viding research through the internet. Ms. Pohl reported
that Mr. Todd attends the annual “Father’s night”. She
reported that he has not attended any other conferences.
She reported that initially both Mr. and Mrs. Todd were
committed to the school prior to enrolling Samuel in
August 1993. (See Attachment)
4. The mental and physical health of person involved
Mr. and Mrs. Todd do not have any obvious physical
health problems or physical disabilities that would limit
their ability to raise their children. Samuel and Garrison
do not have any obvious physical health problems or
physical disabilities that need special attention.
Mrs. Todd, age thirty nine, was born in Cincinnati. She is
the middle child of four children. Her father supported
the family with money he received from her grandfather
and by working as a self employed publisher. Mrs. Todd’s
mother was a housewife. Her early childhood was less
than ideal given the fact that her father was abusive to
her mother and he drank and gambled excessively. Mrs.
Todd indicated that she was always well care [sic] for
because her parents came from wealthy families. They
lived in very nice neighborhoods and they had the advan-
tage of being raised in an upper class home. Mrs. Todd’s
App. 220
mother attempted to protect her from father’s abusive
behavior by hiding it from her. She reported that her
father was physically abusive to her brother and that she
witnessed his abusive behavior towards him. She indi-
cated that her father was Particularly rigid in his expecta-
tions of him as opposed to her sisters. Her parents
divorced during her senior year of high school. Both
remarried shortly afterwards. Mrs. Todd has a closer
relationship with her mother who lives in Cincinnati than
her father who lives in Florida. Mrs. Todd’s mother has
been helping her financially throughout the separation.
Mrs. Todd attended public schools in the Hyde Park area
until her junior year of high school. Mrs. Todd’s father
was especially fond of Culvert [sic: Culver] Military
Academy and during the middle of her junior year in
high school she was transferred to that school where she
graduated. All of her other siblings attended this same
academy. Her oldest sister attended there when the
school started to accept females. After she graduated,
Mrs. Todd attended Colorado State University. She grad-
uated with a Bachelor’s Degree in Business Administra-
tion. After she completed her degree, Mrs. Todd moved
to California where she worked as an assistant buyer. She -
was in this position for a year before being discharged for
failure to meet job expectations. Mrs. Todd then went to
work for another company as an [sic] marketing repre-
sentative. She kept this position for two and a half years
prior to being discharged for failure to meet sales expec-
tations. During the time she was employed as a market-
ing representative, she attended night school and
received her Master’s Degree in Business Administration.
Mrs. Todd worked several different jobs between 1982 to
App. 221
1984 eventually realizing that she was not suited to tradi-
tional work environments. She indicated that she tends to
be a perfectionist and she has difficulty with her interper-
sonal relationships with management. From that point on
she has primarily pursued self employment. She has been
able to do this because she has received money from
inheritances. She has never made much money working
on her own. Her ability to financially support the chil-
dren is questionable because of her erratic work history
and the little amount of money she has made working
independently.
Mrs. Todd is compulsive. She has had problems with
completing tasks because she becomes too overwhelmed
with the details. In 1987. [sic] she went to see Charles
Fuess, [sic] MD, psychiatrist, because she was having
emotional problems around completing a work related
project. Dr. Feuss reported that he diagnosed her at the
time with Cyclothymia disorder which is a chronic mood
disturbance. He tried her on a prescription of lithium for
a period of time with little effect. He stated that her
condition would cause her to have high and low energy
levels. He did not believe that she needed to be on
medication to control this condition. He did not believe
that she had Bipolar disorder. He stated that he has not
seen her in a long time. The distinction between Bipolar
disorder and Cyclothymia are not well defined and it is
sometimes believed that Cylcothymia is a mild form of
Bipolar disorder. Both conditions have to do with disrup-
tions in mood which affect social or occupational func-
tioning. Dr. Feuss’ impression was that Mr. and Mrs.
Todd had very distinctly different personalities and that
caused problems in their marriage. He indicated that Mrs.
App. 222
Todd had very high energy levels and that she was out
going [sic] and social whereas Mr. Todd was easily stress
[sic] by social situations and that this caused conflicts
between them.
Mrs. Todd’s obsessive behavior appears to extend beyond
the realm of the norm. Mrs. Todd is overly focused on the
children’s needs to the extent it could have a harmful
effect on them. Older children need more flexibility and
balance in their lives around educational and social
issues. Mrs. Todd’s inability to balance the children’s
needs as compared to meeting her own needs may
become problematic if she is unable to be obsessive about
them. Mrs. Todd should obtain counseling to help her
establish a healthier balance between her life and the
children’s lives. Further she would benefit from counsel-
ing to address the divorce issues and help her move
forward and make adequate judgments regarding her
responsibilities concerning the children.
Mr. Todd, age forty one, was born in Cincinnati. He is the
oldest child of three children. His father was a doctor and
his mother was a housewife. Mr. Todd indicated that his
father has been successful in his career and that he was
able to provide well for his family. He indicated that his
parents have been supportive of him. Mr. Todd denies
any incidents of domestic violence or alcoholism in his
family when he was growing up. His father is retired and
he is living in his parents’ home. His parents travel
frequently and they have a summer home in Michigan.
When Mr. Todd initially moved from the marital home to
his parent's [sic] home, his parents were on an extended
trip to Scotland. Therefore during a large part of the time
the children have spent with their father, they have been
App. 223
alone with him. Mr. Todd’s sister lives in Cincinnati and
she has helped with baby-sitting the children on Fridays
when Mr. Todd is at work. Otherwise his parents and
sister have been supportive of Mr. Todd but they haven’t
assumed the full time responsibility for caring for the
children. Mr. Todd’s mother indicated that when she is
there he is still the primary caretaker.
Mr. Todd graduated from Western Hill [sic: Walnut Hills]
High School. After graduation he planned on attending
college. He attended Kenyan [sic: Kenyon] University
and received his Bachelor’s Degree in English. After
graduation he worked for K-Mart as a manager trainee-
He decided halfway through the program that he did not
like working for K-Mart and he chose to return to school
in the Fall. He was accepted at Case Western Reserve
University and he completed his Master’s Degree in Busi-
ness Administration. After completing this degree, he got
a job with a bank in the area and continued on with his
education in completing a degree similar to a Doctoral in
Information Systems. His parents were supportive finan-
cially through out [sic] his educational pursuit. After
completing his educational pursuits he went to work for
Federated Department Stores as an EDP Auditor. He
worked for Federated until he was employed by Delottie
[sic] and Touché [sic: Deloitte & Touche] as a computer
consultant in EDP auditing. Mr. Todd was working for
this company when he met and married Mrs. Todd. Mr.
Todd was discharged by Delottie [sic] and Touché
because of discrepancies in his expense accounts. After
his discharge, it became difficult for him to find other
employment. This is when he and Mrs. Todd started a
business together. The stress of running his own business
App. 224
was too overwhelming. Mr. Todd started to avoid stress-
ful situations by leaving the home and living out of his
car. He escaped though [sic] reading science fictions
[sic] books for days at a time neglecting his own needs
and the needs of his family.
Mr. Todd was seen by Dr. Feuss to address his emotional
problems associated with the stress. Dr. Feuss reported
that he initially saw Mr. Todd in 1987 and at that time he
felt he was depressed. He again saw him in 1990 and he
indicated he had the same Symptoms of depression. He
proscribed him Prozac for his depression with little effect.
Dr. Feuss then saw Mr. Todd in 1992 when he stated Mr.
Todd had completely different symptoms. Dr. Feuss
reported that he presented with a panic disorder of fugue
States. This is also known as a psychogenic fugue which
is a disorder where there is sudden, unexpected travel
away from home or customary work locale with assump-
tion of a new identity and inability to recall one’s pre-
vious identity. Mr. Todd was leaving home and being
gone for long periods of time. He would then return
looking disheveled. Dr. Fuess- treated the symptoms with
Zanax which is an anti-anxiety medication with signifi-
cant success. He stated that Mr. Todd was seen again in
1993. His diagnosis of Mr. Todd was that he had Dissocia-
tive States with Reactions. He indicated that this is a type
of neurosis which helped him handle stress. Dr. Fuess
believed that Mr. Todd had a schizoid personality which
is a disorder where there is a pervasive pattern of indif-
ference to social relationships and a restricted range of
emotional experiences. Dr. Fuess believed that Mr. Todd’s
personality was not compatible with Mrs. Todd’s person-
ality to cause extensive problems in the relationship. Dr.
App. 225
Fuess further believed that if Mr. Todd continued to have
fugue states he wouldn’t be an appropriate caretaker for
the children.
Mr. Todd was additionally seen by Clayton Gotwall, [sic:
Gotwals] MD, psychiatrist, in June 1991. Dr. Gotwall pro-
vided his clinical notes which detailed Mr. and Mrs.
Todd’s relationship. He initially diagnosed Mr. Todd with
major depression and a secondary diagnosis of person-
ality disorder not otherwise specified. (See Attachment)
Mr. Todd was seen by Dr. Gotwall after Mrs. Todd
pleaded with his parents to seek treatment for him
because he was suicidal. Mrs. Todd has indicated that she
was never in treatment with Dr. Gotwall and she was not
please [sic] with his care of Mr. Todd indicating that she
felt he did nothing for him. Mrs. Todd was particularly
upset that Dr. Gotwall hospitalized Mr. Todd without her
knowledge. Dr. Gotwall related that Mr. Todd improved
significantly with the hospitalization and treatment for
depression. One of the significant problems mentioned by
Dr. Gotwall was Mr. Todd’s inability to assert himself
with Mrs. Todd on any issue. He indicated that Mrs. Todd
was critical, exceedingly controlling and directive in her
behavior with Mr. Todd causing him to become increas-
ingly depressed. Dr. Gotwall stated that Mr. Todd would
become depressed because of Mrs. Todd’s criticism and
he would feel increasingly inadequate which would
result in a downward spiral of depression that end [sic]
up with him leaving the home. Dr. Gotwall hospitalized
Mr. Todd without Mrs. Todd’s knowledge because he
believed that Mr. Todd needed a controlled environment
in which to interact with Mrs. Todd. Focus of the therapy
App. 226
with Mr. Todd included assertiveness training. Dr. Got-
well recommended that Mr. and Mrs. Todd Participate in
a Beech Acres parenting class to help them learn some-
thing about how to appropriately treat each other
through learning how to appropriately care for their chil-
dren. He hoped that this would teach them appropriate
assertion and the avoidance of controlling intrusive
behavior. Dr. Gotwall attempted to get Mrs. Todd to
Participate in marital counseling as a supportive therapy
for Mr. Todd. He reported the difficulties he had working
with Mrs. Todd and he mentions her having bipolar
disorder. Dr. Gotwall indicated that he has not seen Mr.
Todd since August 1991 and that he currently can not
[sic] assess his capacity for child custody. (See Attach-
ment) Mr. Todd contends that he has not had a single
episode of fugue state since his separation and that his
depression has gone away. Mr. Todd believes that his
emotional problems were directly related to his stressful
relationship with Mrs. Todd.
Mr. Todd still has a difficult time asserting himself with
Mrs. Todd. He tends to avoid her instead of confronting
her on issues. In order for him to affectively [sic] parent
the children, he will have to learn to be [sic] challenge
Mrs. Todd on significant issués regarding the children.
His lack of assertion with Mrs. Todd maybe [sic] causing
her to become even more excessive in her demands and
obsessive in her behavior regarding the children. Mr.
Todd should enter counseling to address why it is so
difficult for him to confront Mrs. Todd regarding the
children issues.
App. 227
5. Physical environment
A home visit was conducted at Mr. Todd’s residence in
the Mt. Lookout area. Mr. Todd is residing in his parent’s
[sic] home. The home has three bedrooms and two and a
half baths. The children have their own bedroom with
twin beds and separate dressers. Mr. Todd has a separate
bedroom in the same area. The home was adequately
furnished. It had a large play area for the children. It was
more than adequate in meeting the children’s needs.
A home visit was conducted at Mrs. Todd’s residence in
the Hyde Park area. Mrs. Todd is residing in the marital
home. The home has three bedrooms and two and half
baths. The children have separate bedrooms. Mrs. Todd
uses the third bedroom. The home was adequately fur-
nished and it had a large play area for the children in the
home and backyard. It was more than adequate in meet-
ing the children’s needs.
6. Caretaking arrangements
Mrs. Todd is not employed and she cares for the children
when they are not in school. Mr. Todd has the children
cared for by his mother or sister on Friday afternoons
when he is working.
SUMMARY AND RECOMMENDATIONS:
Mr. and Mrs. Todd married in 1988. They have two chil-
dren, Samuel, age six and Garrison, age four. The couple
has been separated since December 1993. They are in the
process of divorcing but can not [sic] come to agreement
App. 228
on the payment of educational expenses and medical
expenses. Mrs. Todd was named the temporary residen-
tial parent and Mr. Todd has visited with the children
every Thursday evening overnight and every alternate
weekend. The children have become adjusted to this
schedule as Mr. and Mrs. Todd have followed it for the
last two and a half years. The couple are in agreement
with this parenting arrangement. They are unable to
agree as to who should pay for educational expenses
and medical expenses. Part of the problem has to do with
Mrs. Todd’s insistence that Mr. Todd is capable of paying
these expenses. Mr. Todd denies that he has the financial
where with all [sic] to pay these expenses in addition to
the child support and spousal support he is providing.
Both Mr. and Mrs. Todd have been told that it is not
within my duties to make these determinations as to how
Property is divided. Further I have no information as to
what moneys maybe [sic] available in trust to these chil-
dren.
My impression is that Mrs. Todd is having difficulty
finalizing the divorce because on some level she doesn’t
want the marriage to end. She is obsessing on issues
regarding how the children’s educational expenses will
be paid because it continues to allow her control and
interaction with Mr. Todd. The financial aspects of how
the private school tuition will be Paid is problem [sic] for
Mrs. Todd. Mr. Todd is meeting his financial obligations.
Mr. Todd initiated the separation because he felt that the
Marriage was causing him severe emotional problems. He
alleges his emotional problems have significantly
improved since the separation. A major problem during
the marriage was Mr. Todd’s inability to confront Mrs.
App. 229
Todd’s critical and demanding behavior. He still had
difficulty confronting her and he tends to avoid her
instead of being upset by her behavior. His inability to
confront Mrs. Todd is an ongoing problem and will con-
tinue to cause problems. Mr. Todd should enter counsel-
ing to help him be more assertive with Mrs. Todd.
I am recommending a shared parenting arrangement in
which Mr. and Mrs. Todd continue to follow the schedule
they have set up. The children are adjusted to this sched-
ule and both parents have indicated that it is a [sic]
workable for them. Essentially Mr. and Mrs. Todd have
been in agreement with most issues regarding the chil-
dren except financial obligations. I have attached a
shared parenting plan as an example.
/s/ Leslie Duncan, MSSW
Leslie Duncan, MSSW
Parenting Specialist
June 4, 1996
PARENTING SPECIALIST
SOURCES OF CONTACT
Interviews: «
February 16, 1995 Mr. and Mrs. Todd, Mediation
Assessment and Referral
March 28, 1996 Mr. and Mrs. Todd
April 22, 1996 Mr. and Mrs. Todd
May 16, 1996 Mr. Todd
May 16, 1996 Mrs. Todd
May 17, 1996 Home Visit, Mr. Todd
May 20, 1996 Mr. and Mrs. Todd, Samuel and
Garrison
May 22, 1996 Home Visit, Mrs. Todd
in
App. 230
Phone Contacts:
February 13, 1995 Mrs. Todd
November 2, 1995 = Mrs. Todd
March 14, 1996 Mr. Todd
April 10, 1996 Mrs. Todd
May 1, 1996 Charles Fuess, MD
May 10, 1996 Charles Fuess, MD
Reports:
November 8, 1995 Mediation Assessment From
Bea Larsen, J.D.
April 10, 1996 Witness questionnaire, Emily Todd
April 11, 1996 Hamilton County Sheriff's Report
April 15, 1996 Witness Questionnaire,
Elle Stefanie
April 22, 1996 Parent Questionnaire, Mr. Todd
April 22, 1996 Witness Questionnaire,
LaVaughn Bardes
April 25, 1996 Witness Questionnaire, Karen Pohl
May 8, 1996 Statement and Clinical Notes From
Clayton Gotwall, MD
May 16, 1996 School Questionnaire, Karen Pohl
May 16, 1996 School Questionnaire, Karen Pohl
May 16, 1996 Parent Questionnaire, Mrs. Todd
May 16, 1996 Additional Information Received
From Mrs. Todd
App. 231
T.d. 201
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
D’Ellen Bardes : Case No: DR9402798
SS# 270-52-9846 - : File No: E 194749
DOB: : CSEA AA# 89964/01
Plaintiff © MAGISTRATE’S DECISION
aie ’ WITH FINDINGS OF FACT
* AND CONCLUSIONS OF
Samuel Pogue Todd, III ; LAW
SS# 293-56-1656
DOB: 01/04/54
Defendant
Judge: Cunningham
(ENTERED AUG. 29, 1998)
A hearing for the determination of all [sic: App. 146,
#1; App. 153] issues except the merits in the above case
was held on May 15, 1997, July 31, 1997, October 24, 1997
& December 18, 1997. Magistrate William L. Murphy,
Domestic Relations Division of the Common Pleas Court,
heard this matter in accordance with Rule 53 of the Ohio
Rules of Civil Procedure. Present at the hearing were
Wife who appeared pro se and Husband with Attorney
William S. Abernethy, Jr. Based upon the evidence pre-
sented, the arguments and the law, the following is
issued:
FINDINGS OF FACT
1. The parties were married on May 26, 1988, with
two children born issue of their marriage: Samuel, born
a baby aS ae Baie ske bela ED ani
6 Stiballs DES Ahan laa
App. 232
February 19, 1990; and Garrison, born September 26,
1991. The parties separated in December 17, 1993 and
Wife filed for divorce on August 31, 1994. A Temporary
order regarding child support and spousal support was
issued December 12, 1994. Prior to the temporary order,
Husband was paying to Wife $900.00 per month in family
support. The duration of the parties marriage will be
determined to be from May 26, 1988 to December 17,
1993, pursuant to Defendant's exhibit #11, wherein Wife
States the marriage had ended. The length of the parties
marriage therefor [sic] is 5 years, 7 months.
2. The parties entered [sic: court ordered, App. 146,
# 2, @ App. 254; App. 136] into a shared parenting plan,
with the following issues unresolved and left to the
Court: child support, educational expenses, health insur-
ance/medical expenses, life insurance, [sic: deleted @
App. 146, # 3] cost of children’s activities, post-high
school expenses and allocation of the tax dependency
exemption [sic: deleted @ App. 146, # 3] of the minor
children. The issue of post-high school expenses is to be
heard by Judge Cunningham.
3. The parties resolved all property issues by agree-
ment, except for the issue of spousal support which is left
to the Court to decide.
CHILD SUPPORT
4. Wife is currently unemployed. She has had [sic]
not been employed other than through a self owned and
operated business either on her own, or with Husband
since 1984, except for one month with the IRS in 1991 and
for a semester plus 2.5 weeks with U.C. in 1988. Her last
full time employment by a outside employer was in
App. 233
1983-1984, when she was employed by U.S. West, where
she had annualized earnings of $30,000.00. Pursuant to
her tax returns in 1994, 1995 & 1996, Wife had no earned
income from wages, salaries, or tips. In 1997, Wife had no
earned income from wages, salaries, or tips. In 1995, Wife
had interest and dividend income of $10,737. In 1996,
wife had interest and dividend income of $11,129.00. This
interest and dividend income is obtained from Wife’s
separate stock, with a market value of $838,694.00, [sic:
corrected at App. 139 to $710,706.00] as of October 24,
1997. This value is prior to any taxes or sales commis-
sions that would have to be paid if these assets were
liquidated.
For the years 1994 through 1996, Wife had not sub-
mitted any formal job applications. Wife’s only pursuit of
work was through trying to obtain contracts with
employers and pursuing writing articles through contract
employment. Wife is a skilled computer operator and her
employment throughout her career has been primarily in
the computer field. Currently, Wife is attending paralegal
school. Both of the parties children are attending school
on a full time basis. Wife has no health problems that
would prevent her from obtaining and maintaining
employment. For the purpose of determining the appro-
priate amount of child support in this matter, the Magis-
trate will impute to her income equal to a full time
minimum wage job, which equals a gross annual income
of $10,920.00, which will be combined with her interest
and dividend income of $11,129.00, which will give Wife
total income of $22,049.00. Wife presented no evidence
that she has any day care expense.
App. 234
5. Husband is currently employed by Ross Sinclair
[sic: Sinclaire] & Associates. He is paid $50,000.00 gross
per year for 1,000 hours of work. As of October 24, 1997,
Husband anticipated generating an additional $20,000.00
in income per year as an independent contractor with
Ross Sinclair and other contract work. On November 10,
1997, Husband signed an employment contract with his
Previous employer Computer Horizons working part
time on a project they have with Proctor [sic] & Gamble.
This project was supposed to run through April, 1998 and
Husband anticipated earning between $50,000.00 and
$60,000.00 from this employment. In past years, Husband
has earned money form [sic] moonlighting in addition to
his regular employment. In 1995 he had moonlighting
income of $13,721.00. In 1996, he had moonlighting
income of $21,443.00. The average of these two years is
$17,582.00. By taking the possible $60,000.00 Husband
anticipates earning from Computer Horizons in 1997 and
1998, the average moonlighting income Husband would
have over the last four years would be $23,791.00. This
amount of income will be added to Husband’s base
income and his interest and dividend income of $1,926.00
to arrive at his income for purposes of determining child
support, which totals $75,717.00. Husband has no [sic: no
earned, at App. 239, #a] income from any other source.
Husband has daycare expenses of $575.00 per year and
his cost for providing health care for the parties children
is $1,301.00 per year.
Using these income figures, the amount of child sup-
port Husband would be required to pay would be $499.71
per month, per child.
App. 235
HEALTH CARE INSURANCE/MEDICAL EXPENSES
6. Pursuant to the parties shared parenting plan,
Husband will provide health insurance for the parties
minor children. The parties could not agree on how unre-
imbursed medical expenses for the children should be
paid. No particular evidence was submitted by either
party, as to why the Court’s standard order for the pay-
ment of unreimbursed medical expenses should not be
used in this case. Wife would prefer that the unreim-
bursed medical expenses be divided with her paying 25%
and Husband paying 75%. Wife would also prefer that
any speech therapy costs for Garrison be treated differ-
ently than other medical expenses. The parties stipulated
to the speech therapists’ report and stipulated [sic] and
Husband stipulated that he would assist in home therapy
for Garrison. .
COST OF CHILDREN’S ACTIVITIES
7. The parties could not agree on how to pay for the
cost of the children’s extracurricular activities. The par-
ties did not present any particular evidence as to how
they would like these expenses divided, other than the
general financial evidence that was supplied.
EDUCATIONAL EXPENSES
8. The parties stipulated that their children are
gifted [sic: highly gifted, T.p. 143, p. 4, Il. 12-17,
amended @ T.p. 167, p. 5, ll. 4-9, reaffirmed @ T.p. 238, p.
40] children and as gifted children it would be better
for them to attend a private school, such as Summit, as
opposed to going to public school. It was further stipu-
lated that the children are currently attending Summit
App. 236
Country Day school and are doing well in school. Wife
believes that the parties should share in the cost of
sending the parties children to private school through
college. The issue before the Magistrate is whether or
not the parties should share in the cost of private educa-
tion through high school and if so, how that cost should
be divided. Husband is not adverse to sharing in the
cost of private school for the parties children, but
claims he cannot afford to do so at this time. Currently
the cost of sending both children to Summit is $7,905.00
per child, per year, or $15,810.00 annually. Wife has
continuously had the children enrolled in Summit and
has utilized money from her mother to help in the
tuition costs and other costs associated with sending the
parties children to Summit. Wife intends to pay her
mother back the tuition money her mother has paid.
This total is approximately $54,431.50.
Wife believes that the parties entered into an agree-
ment during their marriage to send their children to
private school and that therefore that agreement should
be enforced by order of this Court. Wife’s basis for this
argument is the spreadsheets the parties prepared in
1991 to project the cost of private school tuition for the
mi.ority of their then 1 year old son, i.e., Wife’s exhibit I.
At the time, the parties had a total income of $27,769.00.
In fact in 1991 when this spreadsheet was created, Hus-
band was unemployed and receiving unemployment ben-
efits. In 1992, the parties had an income of $14,157.00
before deducting losses. In 1993, the parties had an
income of $14,478.00 before deducting losses. The pro-
jected cost for the education of one child was between
$80,370.00 and $104,272.45, through high school. Wife
App. 237
testified that the parties anticipated liquidating assets to
pay for the tuition, if their income did not rise to the level
to meet these expenses. Husband denied any agreement
to send the children to private school. The only marital
money spent on the children’s private schooling was
money spent prior to August 15, 1993 [sic: oral stips. @
T.p. __] to enroll Samuel [sic: both sons, @ T.p. 190, p.
118, ll. 9-24] in Summit Montessori. [sic: App. 182 evinces
two private preschools prior to Summit with marital pay-
ment @ P.’s Exh. 1, 10/24/97, T.p. 186] Since that time,
Husband has refused to contribute any money to the
payment of tuition for the parties children to attend
private school. In fact when Wife sent him a bill for
tuition in August, 1994, Husband returned the bill with
“not my bill”, written on the bill. There was no evidence
presented to show that the parties entered into any agree-
ment to send the parties children to private school. The
evidence only reflects that the parties desired to send
their children to private school and would do so if they
could afford the tuition.
Wife’s second basis for requesting that Husband con-
tribute to the private school tuition of their children is
that based on the parties privileged upbringing, which
included private schooling, their children have a right to
the same privilege. There is no legal basis to this argu-
ment. There is no “right” to attend private school based
upon a parents having attended a private school, or the
fact that a parent was raised in an environment that
included the financial ability to send the parent to a
private school. The only standard that will be applied
by the Court is whether or not the parties have the
financial resources available to send their children to
App. 238
private school. Wife has already indicated her willing-
ness to send the parties children to private school cur-
rently, so Husband’s finances will be examined to
determine whether or not he has the current ability to
contribute to the cost of private tuition.
Husband’s gross annual income has already been
established at $75,717.00. The parties stipulated [sic:
mathmatical stip. only, App. 127-129, 132, 148, # 5] that
based on Husband’s net income after taxes on a gross
income of $76,371.00 per Defendant’s exhibit #26 and
payment of child support, day care and premiums for
health insurance for the children, Husband has dispos-
able income of $179.00 per month. This equals net dispos-
able income of $2,148.00 per year. Based on these
numbers and with private school tuition costing over
$15,000.00 per year, it is not appropriate at this time to
order Husband to contribute to the cost of private school
tuition. In addition, with the finding that there is no
agreement between the parties to send the children to
private school, Husband will not be ordered to contrib-
ute to the tuition expenses already incurred by Wife
sending the children to private school, as absent any
agreement to do so, Wife has made the decision to send
the parties children to private school on her own [sic:
App. 39, # 9.2; App. 182-184; App. 215, 219, 178; T.d. 23,
p- 1, # 1] and she will be solely responsible for the cost.
In addition, there are funds on deposit in custodial
accounts for each of the parties children, that the parties
stipulated could be used for the parties education
expenses. As of December 14, 1997, each of the chil-
dren’s’ accounts had balances of over $17,400.00. Wife’s
App. 239
mother funds these custodial accounts with approxi-
mately $4,000.00 per year per child. Wife spends about
$6,000.00 of the $8,000.00 per year.
TAX DEPENDENCY EXEMPTIONS [sic: section -
stricken @ App. 146, # 4]
9. No evidence was presented on this issue, as to
the benefit of the exemptions for either party. The Magis-
trate will divide the exemptions between the parties.
SPOUSAL SUPPORT
10. In order to determine whether or not spousal
support should be ordered in this matter and if so, for
how long and in what amount, the Magistrate will apply
the relevant factors contained in O.R.C. 3105.18:
a. The income of the parties, from all sources,
including, but not limited to income derived from property
divided, disbursed, or distributed under Sec. 3105.171: As
previously stated in this decision, Wife is currently unem- .
ployed, but she will have imputed to her minimum wage
income for a full time job, which is $10,920.00 gross per
year. In addition, Wife has interest and dividend income
of $11,129.00 per year, from her separate assets, which
had a market value of over $800,000.00 as of the property
hearing. Husband has earned income of $73,791.00 gross
per year and interest and dividend income of $1,926.00
per year, for a total gross annual income of $75,717.00. He
has no other source of income;
b. The relative earning abilities of the parties: In
her last full time outside employment, Wife earned an
annualized income of $30,000.00. During her time in run-
ning her own business and businesses with Husband, she
App. 240
never showed the ability to earn that much income. Wife
is currently obtaining a paralegal degree and anticipates
obtaining employment upon completion of this degree,
paying approximately $20,000.00 per year. Husband cur-
rently earns $73,791.00 gross per year. Based upon this
evidence, it is clear that Husband has a greater earning
ability currently, than Wife:
c. The ages and the physical, mental, and emotional
conditions of the parties: Wife was born July 21, 1956 and is
42 years old. Pursuant to the evidence, Wife is in good
health and suffers from no disabilities. Husband was
born October 9, 1954 and will soon be 44 years old.
Pursuant to the evidence, Husband is in good health and
suffers from no disabilities.
d. The retirement benefits of the parties: The par-
ties divided their [sic: husband’s, @ App. 146, # 5] retire-
ment benefits between them. No evidence was presented
as to the amount of these benefits.
e. The duration of the parties marriage: It has
already been established that the parties were married for
5 years, 7 months.
f. The extent to which it would be inappropriate for
a party, because he will be custodian of a minor child of the
marriage, to seek employment outside the home: This factor is
not relevant, as both of the Parties children are attending
school on a full time basis. Wife would have the ability to
obtain and work at a full time job outside the home.
8- The standard of living the parties established
during the marriage: The parties had a very nice standard
of living during their marriage, but that was due mainly
App. 241
to gifts that Wife’s mother and grandmother made to the
parties. The parties themselves never earned enough
money during their marriage to sustain the lifestyle they
lived.
h. The relative extent of education of the parties:
Both parties have received very good education’s [sic].
Wife has a Bachelor of Science in Business Administration
from Colorado State University and a Master of Business
Administration from Golden Gate University. Husband
has a Bachelor of Arts degree from Kenyon College, a
Master of Business Administration from Case Western
Reserve and a Certificate in Advanced Proficiency Man-
agement in Information and Decision Systems. This cer-
tificate is like completing a doctorate degree without
doing a thesis.
i. The relative assets and liabilities of the parties,
including but not limited to any court-ordered payments by the
parties: Wife has current assets totaling over $800,000.00,
including her separate stock, equity in her resid.nce and
a payment of $4,987.77 due her by Husband. Wife « actual
current liabilities total approximately $55,000.00. Wife
included many future possible expenses in her summary
of liabilities, such as law school tuition, repairs to her
residence, etc., but those are only possible not actual
expenses, as Wife has not been accepted into law school
and the repairs to the residence were for it to be ready for
sale, but Wife has no intention of selling the property at
this time. Husband has total assets of $80,176.00 and total
liabilities of $45,743.00. Husband at some future date will
be the beneficiary of some trusts that may bring him
substantial assets, but currently he has no interest in
those trusts.
App. 242
j. The contribution of each party to the education,
training, or earning ability of the other party, including, but
not limited to, any party's contribution to the acquisition of a
professional degree of the other party: The parties completed
their formal education prior to the parties marriage. Dur-
ing their marriage, Wife helped Husband to improve his
computer skills, which has enabled him to increase his
ability to earn income.
k. The time and expense necessary for the spouse
who is seeking spousal support to acquire education, training,
or job experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or
job experience, and employment is in fact sought: Since the
parties separation on December 17, 1993, Wife has done
very little to pursue either training or employment. In
1997, Wife enrolled in paralegal school. She expects to
complete the school in late 1998, or in 1999. As of the
hearing on July 31, 1997, Wife had 11/2 years of schooling
left. Her cost for schooling is $177.00 per month. Wife
also included evidence of her cost to attend law school,
but as of the end of the property trial Wife had not been
accepted into law school, so there is no guarantee that
Wife would incur this cost. Even if she did attend, it is
not mandatory training for her to obtain employment.
Wife is a skilled computer operator and if she chose to
attend law school, it would be a strictly voluntary
expense.
1. The tax consequences, for each party, of an award
of spousal support: The Magistrate takes judicial notice that
any award of periodic spousal support to Wife from
Husband, would be taxable income to Wife and a tax
SS
App. 243
deductible to Husband. Neither party provided any spec-
ific evidence on the tax ramifications such an award
would have on the parties.
m. The lost income production capacity of either
party that resulted from that party's marital responsibilities:
No evidence was presented to show that either party had
a decrease in their income production capacity due to
their marital responsibilities.
n. Any other factor that the court expressly finds to
be relevant and equitable: In deciding whether or not spou-
sal support should be paid in this matter, the Magistrate
considered the living expenses of each part [sic] as shown
by their testimony and exhibits. In addition, the Magis-
trate considered the fact that the parties marriage termi-
nated in December, 1993 and Husband has been paying
support to Wife since that date including court ordered
temporary spousal support since December 12, 1994, a
period of 3 years 8 months as of the writing of this
decision.
COURT COSTS
11. The parties stipulated to the payment of court
costs. [sic: through May 5, 1997, @ App. 146, # 6].
EXHIBITS
12. Wife’s exhibits A through S and U and 1
through 13 and 15 through 19, were admitted and are
incorporated herein. Wife’s exhibits T and 14 were not
admitted. Husband’s exhibits 1 through 7, 11 through 25,
27 through 32 were admitted and are incorporated herein.
————
App. 244
Husband’s exhibit 26 was admitted over Wife’s objec-
tions and is incorporated herein. Husband's exhibits 8, 9,
& 10 were withdrawn.
CONCLUSIONS OF LAW
The law to be applied regarding spousal support is
contained in O.R.C. § 3105.18. In considering the property
division issues, O.R.C. § 3105.171 is pertinent. The start-
ing point for division of property is an equal division.
Cherry v. Cherry, (1981), 66 O.S. 2d, 348 421 N.E. 2d 1293.
O.R.C. § 3109.05, § 3113.21, § 3113.215 and § 3113.217
et. seq. are relevant in setting child support. In determin-
ing the allocation of parental rights and responsibilities
and visitation, O.R.C. § 3109.03, O.R.C. § 3109.04, O.R.C.
§ 3109.041, § 3109.051 and § 3109.22 are taken into
account.
DECISION
1. Father shall pay support in the amount of $499.7]
per month per child plus a 2% processing charge, payable
through The Division Of Child Support Of The Depart-
ment Of Human Services Agency for the parties’ chil-
dren. This order is effective September 1, 1998 and is
payable monthly in the total amount of $1,19.41 [sic],
including the processing charge. Notwithstanding section
3109.01 of the Revised Code, the parental duty of support
| to children, including the duty of a parent to pay support
pursuant to a child support order, shall continue beyond
the age of majority as long *s the child continuously
SS eB tis
App. 245
attends on a full-time basis any recognized and accred-
ited high school or a court-issued child support order
provides that the duty of support continues beyond the
age of majority. Except in cases in which a child support
order requires the duty of support to continue for any
period after the child reaches age nineteen, the order
shall not remain in effect after the child reaches age
nineteen. That duty of support shall continue during
seasonal vacations. Father is responsible for making pay-
ments directly to The Division Of Child Support Of The
Department Of Human Services Agency until such time
as a deduction order takes effect. Any payment made
directly to the residential parent and not through the
Hamilton County Support Enforcement Agency shall be
deemed a gift and not credited to the support account.
2. Father shall maintain health insurance for the
parties’ children. A Qualified Medical Child Support
Order shall issue. This order shall remain in effect for
each minor child until that child reaches the age of
eighteen (18) and no longer attends an accredited high
school on a full-time basis unless otherwise ordered.
The residential parent and legal custodian [sic: Mother, @
App. 147, #7] shall pay the first $100.00 per calendar year
per child for all uninsured medical, dental, hospital, pre-
scriptions, optical, psychological, psychiatric and orth-
odontic expenses. The remaining costs of these uninsured
costs shall be shared equally between the parties.
3. [sic: # 3 stricken, @ App. 147, # 8] The nonresi-
dential parent shall be entitled to use the parties’ oldest
child as a tax exemption so long as the nonresidential
parent is substantially current in child support payments
for the year in which there is a desire to use the child for
App. 246
tax exemption purposes. The residential parent and legal
custodian shall be entitled to use the Parties’ children for
tax exemption purposes in all other instances. The resi-
dential parent shall sign any documents necessary to
effect this order. This Paragraph is only effective while
the parents have a legal obligation to support the child to
whom it refers. The awarding to the nonresidential par-
ent of some tax benefit furthers the interests of the par-
ties’ children by encouraging the nonresidential parent to
be totally current in Support payments and so that the
nonresidential parent will, from time to time, have extra
discretionary funds to spend on the parties’ children.
4. Until further order of the Court, Husband shall
not be required to contribute to the cost of private
elementary, or secondary education of the parties chil-
dren.
5. The cost of the parties children’s’ extracurricular
activities shall be divided equally between the parties for
those activities in which the Parties agree, that the chil-
dren should participate. If the parties disagree on the
children participating in an activity, either parent may
enroll the children in that activity, but the parent enroll-
ing the children in the activity shall be responsible for
— 100% of the cost of that activity.
6. Neither party shall pay spousal support/alimony
to the other. The temporary order of spousal support
Shall be terminated effective September 1, 1998. Any -
arrearage due on the temporary spousal support order
shall be preserved in the parties decree of divorce.
7. The parties agreed entries and stipulations
regarding property are incorporated herein for all pur-
poses.
App. 247
Copies of this Decision have been mailed to the par-
ties or their counsel. Objections to this Magistrate’s Deci-
sion must be filed within fourteen days of the filing date
of the Magistrate’s Decision.
/s/ William L. Murphy
Magistrate
William L. Murphy 08/19/98
Copies sent by Clerk of Courts to:
D’Ellen Bardes, Pro Se Plt
1035 Paxton Avenue
Cincinnati, Ohio 45208
William S. Abernethy, Jr., Esq. DEF.
ENTRY ADOPTING MAGISTRATE’S DECISION
Pursuant to Civil Rule 53, the Court hereby adopts
the Magistrate’s decision. The filing of timely written
objections to the Decision shall operate as an automatic
Stay of the execution of this judgment until the Court
disposes of those objections and thereby vacates, mod-
ifies, or affirms the judgment previously entered.
/s/ Penelope R. Cunningham cs
Judge Court of Common Pleas
Division of Domestic Relations
[Petitioner’s Note: Magistrate’s
Decision, App. 231-App. 247, was
amended inter alia @ App. 139;
146-147; T.p. 190, p. 118; was
adopted except as otherwise
ordered, @ App. 150, last para.;
App. 69, # 2.]
a ahd POE Adare nbicren etcnation
App. 248
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App. 250
T.d. 189
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
D’Ellen Bardes : Enter Cunningham, J.
Plaintiff : Date 1/23/1998
>: Case No. A/DR
-52- 7
270-52-9846 ° (ans36 DR 94-02798
: File No. E
-vs/and- >: CSEA NO. AA/AB
Defendant ENTRY
293-56-1656 10/9/54 .
DOB
1. Plaintiff's Motion for Extension of Time, filed
1/15/1998 is hereby granted, with Closing Arguments
now due at 4:00 p.m. on Mar. 18, 1998. /s/ DB, WA Fhe
The Judge has
agreed to take the issues relating to college expenses
under advisement.
2. Plaintiff’s Motion for Declaratory Judgment filed
12/10/97 shall be set on the Judge’s docket for a three
hour oral argument on the law only. Such Motion shall be
heard at the same time as the Objections to Magistrate
Murphy’s Decision on Child Support.
App. 251
3. The issues of college education expenses shall not
be included in such closing arguments.
/s/ William S. Abernethy /s/ D Bardes
Attorney for Defendant Plaintiff/Pro Se
1/26/98
App. 252
T.d. 149
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
Case No: DR 9402798
File No: E 194749-0-7
CSEA AA# 89964/01
MAGISTRATE’S ORDER
Judge: Cunningham
D’ellen Bardes
SS#: 270-52-9846
DOB: 7/21/56
)
)
)
Plaintiff ‘
-VS- )
Samuel Pogue Todd III
)
)
)
SS# 293-56-1656
DOB: 01/04/54
Defendant
ORDER
(FILED JUL. 17, 1997)
1. The deadline for the Parties to file their Proposed
findings of fact and conclusions of law for Judge Cun-
ningham’s Parenting decision, is extended by agreement
of the parties to August 15, 1997.
2. The Plaintiff’s motion for continuance of the July
31, 1997, Property trial is denied.
3. The Plaintiff’s motion to determine jurisdiction
re: college expenses, is dismissed, as this matter is more
appropriately addressed in the Property trial. This is not
a decision on the issue of whether or not this court has
jurisdiction over the issue of college expenses.
Copies of this order have been Personally given to/
mailed to the parties or their counsel. This Order is
App. 253
effective immediately. Either party may appeal this order
by filing a Motion to Set the Order Aside within ten days
of the date this order is entered. The pendency of a
Motion to Set the Order Aside does not stay the effective-
ness of this order unless the Magistrate or Judge grants a
Stay.
/s/ William L. Murphy
Magistrate William L. Murphy
07/17/97
Copies sent by Clerk of Courts to:
D’ELLEN BARDES, PRO SE
WILLIAM S. ABERNETHY, JR., ESQ.
App. 254
T.d. 140
COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
HAMILTON COUNTY, OHIO
DEE ELLEN GARRISON : Case No. DR 9402798
BARDES File No. E-194749-0-7
Plaintiff : DECISION
rm _ ALLOCATING
' PARENTAL RIGHTS
seer GUE TODD Toe RESPONSIBILITIES
er Judge Cunningham
(FILED MAY 23, 1997)
The above captioned matter came before the Court
for trial on the merits of the pre-decree allocation of
parental rights and responsibilities for the parties’ two
minor children, to wit: Samuel Pogue Todd IV, born Feb-
ruary 19, 1990 and Garrison Todd, born September 26,
1991.
Based upon the evidence and testimony presented
and in full consideration of the Statutory provisions of
O.R.C. Section 3109.04 as well as the applicable case law,
the Court finds that shared parenting is in the best inter-
est of the minor children. The Court will accept Father’s
Shared Parenting Plan as filed on January 7, 1997 with the
following modifications:
1. The financial issues of child Support, educational
expenses, health insurance / medical expenses, life insurance,
cost of children’s activities, post-high school expenses and
allocation of the tax dependency exemption for the minor
App. 255
children shall be referred to the assigned Magistrate for
hearing and disposition unless the parties are able to
agree in writing as to the resolution of said issues.
2. Removal of Children From the Court’s Jurisdic-
tion: See Section 3.2 on Page 8 of Father’s Plan. The Court
requires the following modification unless the parties
agree otherwise in writing: The parties recognize that if
either of them should move from this jurisdiction, it will
necessarily require a modification or termination of this
Plan. Neither party shall remove the minor children from
Hamilton County or its contiguous Ohio counties and
establish residence for them in another county without a
Court order or an agreement signed by the parties and
filed with the Court.
3. Medical Decision: See Section 11.5 on Page 14 of
Father’s Plan. The Court requires the following modifica-
tion unless the parties agree otherwise in writing: Except
in the case of routine visits and emergencies, all major
decisions regarding the children’s medical, dental, orth-
odontic, optical, psychological, psychiatric, pharmaceuti-
cal drugs and hospital or physical care, attention or
treatment shall be jointly made by the parties following
consultation between them and in collaboration with the
health care provider. In the event the parties are unable to
agree, Mother shall determine the need for said care,
attention and/or treatment. Father will be entitled to a
second opinion at his expense.
Except as noted otherwise herein, all other provisions
of Defendant/Father’s Shared Parenting Plan are found
to be in the best interest of the minor children. Upon
App. 256
Defendant/Father’s submission of the above noted mod-
ifications and following hearing and disposition of the
financial issues referenced above by the assigned Magis-
trate, the Court will accept and adopt Defendant/
Father’s Plan as the Court’s Order of Allocation of Paren-
tal Rights and Responsibilities.
IT IS SO ORDERED
/s/ Penelope R. Cunningham
Judge Penelope R.
Cunningham
May 23, 1997
c: William S. Abernethy, Esquire
Dee Ellen Bardes, Plaintiff
App. 257
APPENDIX B1
G.O.P. Mailing Touts Clerk’s Website
[SEAL] ABOUT THE CLERK
Jim Cissell ¢ Clerk of Courts Hamilton County, Ohio
Top 10 Award
[LOGO] JUSTICE
SERVED
www.justiceserved.com
Justice Served Named
www.courtclerk.org
#1 website
AS CLERK OF COURTS JIM CISSELL HAS:
¢ Totally modernized the Clerk of Court’s office.
° www.courtclerk.org named America’s #1 court web
site (now getting 2.4 million hits per month).
¢ Finalist in Smithsonian Computerworld Awards
(others were GTE, Lucent Technologies, the Federal
Reserve Board and the FDIC) for the country’s most
advanced court computer system.
e Established three suburban offices open until 6:00
p-m. for the public’s convenience.
e Published various court information guides including
Small Claims Guide, How to Obtain a Passport and How
to Secure an Auto Title.
¢ Honored by “Mothers Against Drunk Driving.”
¢ Returned savings of millions of dollars to the County
treasury, some of which were used to fund a domestic
violence task force and help fund video cameras for
17 local police departments.
(<Credentials continued on next page>)
App. 258
G.O.P. Mailing Attest To
Clerk of Court’s High Profile
NO ONE MATCHES JIM CISSELL’S BACKGROUND
AND EXPERIENCE:
President of the Ohio Clerk of Courts Association.
Member of the Ohio Bicentennial Commission.
Member of the Ohio Courts Futures Commission.
Member of the Ohio Supreme Court Advisory Com-
mittee on Technology and the Courts.
United States Attorney, Southern District of Ohio.
President-elect, National Association of Former U.S.
Attorneys.
Author of Federal Criminal Trials and Ohio Oil and Gas
Law.
Listed in Who's Who in America and Who's Who in
American Law.
Graduate of both Xavier University and the Univer-
sity of Cincinnati College of Law.
Attended Ohio State University as a Ford Foundation
Fellow.
JIM CISSELL for CLERK OF COURTS
Jim Cissell [SEAL]
for CLERK OF COURTS
Ohio Republican Party
211 S. 5th Street
Columbus, Ohio 43215
App. 259
APPENDIX C
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-2117
Appellant, 7 ENTRY
Vv. j
Samuel Pogue Todd III,
Appellee.
(FILED DEC. 20, 2000)
¢
This cause is pending before the Court as a discre-
tionary appeal and claimed appeal of right. Upon con-
sideration of appellant’s motion for stay of court of
appeals’ judgment,
IT IS ORDERED by the Court that the motion for stay
be, and hereby is, denied.
(Hamilton County Court of Appeals; No. C000055)
, /s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
(Stamped 92-464)
— EEE. TA SEISMIC ENEOSS BERIT TES a
App. 260
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-2117
Appellant, ' ENTRY
v.
Samuel Pogue Todd III, t
Appellee.
(FILED FEB. 14, 2001)
Upon consideration of the jurisdictional memoranda
filed in this case, the Court declines jurisdiction to hear
the case and dismisses the appeal as not involving any
substantial constitutional question.
COSTS:
Docket Fee, $40.00, paid by Dee Ellen Bardes.
(Hamilton County Court of Appeals; No. C000055)
/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
(Stamped 93-124)
App. 261
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-2117
Appellant, ‘ RECONSIDERATION
v. ' ENTRY
Samuel Pogue Todd III, : (Hamilton ae
Appellee. : County)
(FILED APR. 04, 2001)
IT IS ORDERED by the Court that the motion for
reconsideration in this case be, and hereby is, denied.
(Court of Appeals No. C000055)
/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
App. 262
SCO #00-2254:
Separate Appeal Of Failure
To Certify Conflicts
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-2254
Appellant, ENTRY
. V. ;
Samuel Pogue Todd III,
Appellee.
(FILED JAN. 17, 2001)
This cause is pending before the Court as a discre-
tionary appeal. Upon consideration of appellant’s motion
for stay of court of appeals’ judgment entry,
IT IS ORDERED by the Court that the motion for stay
be, and hereby is, denied. ete 0
(Hamilton County Court of Appeals; No. C000055)
/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
App. 263
SCO #00-2254:
Separate Appeal Of Failure
To Certify Conflicts
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-2254
Appellant, ENTRY
v.
Samuel Pogue Todd III,
Appellee.
(FILED FEB. 22, 2001)
This cause is pending before the Court as a discre-
tionary appeal. It appears from the records of this Court
that appellant has not filed a memorandum in support of
jurisdiction, due December 18, 2000;-in- compliance with
the Rules of Practice of the Supreme Court and therefore
has failed to prosecute this case with the requisite dili-
gence. Upon consideration thereof,
IT IS ORDERED by the Court that this cause be be
[sic], and hereby is dismissed, sua sponte.
COSTS:
Docket Fee, $40.00, paid by Dee Ellen Garrison
Bardes.
(Hamilton County Court of Appeals; No. C000055)
/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
App. 264
SCO #00-2254:
Separate Appeal Of Failure
To Certify Conflicts
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-2254
Appellant, RECONSIDERATION
V. : ENTRY
Samuel Pogue Todd III, (Hamilton County)
Appellee.
(FILED MAR. 19, 2001)
IT IS ORDERED by the Court that this motion for
reconsideration in this case be, and hereby is, denied.
(Court of Appeals No. C000055)
/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
App. 265
SCO #00-545:
Separate Appeal Of Failure
To Hear Case Sitting “En Banc”
The Supreme Court of Ohio
Dee Ellen Garrison Bardes, : Case No. 00-545
Appellant, ENTRY
Vv.
Samuel Pogue Todd Ill,
Appellee.
(FILED JUN. 14, 2000)
Upon consideration of the jurisdictional memoranda
filed in this case, the Court declines jurisdiction to hear
the case and dismisses the appeal as not involving any
substantial constitutional question.
COSTS:
Docket Fee, $40.00, paid by Dee Ellen Garrison
Bardes.
(Hamilton County Court of Appeals; No. C000055)
/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice
: App. 266
APPENDIX D
28 U.S.C. § 1738B. Full faith and credit for child support
orders
(a) General Rule. - The appropriate authorities of each
State -
(1) shall enforce according to its terms a child sup-
port order made consistently with this section by a court
of another State; and
(2) shall not seek or make a modification of such an
order except in accordance with subsections (e), (f), and
(i).
(b) Definitions. - In this section:
“child” means -
(A) a person under 18 years of age; and
(B) a person 18 or more years of age with
respect to whom a child support order has been issued
pursuant to the laws of a State.
“child’s State” means the State in which a child res-
ides.
“child’s home State” means the State in which a child
lived with a parent or a person acting as parent for at
least 6 consecutive months immediately preceding the
time of filing of a petition or comparable pleading for
support and, if a child is less than 6 months old, the State
in which the child lived from birth with any of them. A
period of temporary absence of any of them is counted as
part of the 6-month period.
App. 267
“child support” means a payment of money, con-
tinuing support, or arrearages or the provision of a
benefit (including payment of health insurance, child
care, and educational expenses) for the support of a
child.
a
“child support order” -
(A) means a judgment, decree, or order of a -
court requiring the payment of child support in periodic
amounts or in a lump sum; and
(B) includes —-
(i) a permanent or temporary order; and
Gi) an-initi or a modification of an
order.
“contestant” means —
(A) a person (including a parent) who -
(i) claims a right to receive child support;
(ii) is a party to a proceeding that may
result in the issuance of a child support order; or
(iii) is under a child support order; and
(B) a State or political subdivision of a State to
which the right to obtain child support has been
assigned.
“court” means a court or administrative agency of a
State that is authorized by State law to establish the
amount of child support payable by a contestant or make
a modification of a child support order.
“modification” means a change in a child support
order that affects the amount, scope, or duration of the
App. 268
order and modifies, replaces, supersedes, or otherwise is
made subsequent to the child support order.
“State” means a State of the United States, the Dis-
trict of Columbia, the Commonwealth of Puerto Rico, the
territories and possessions of the United States, and
Indian country (as defined in section 1151 of title 18).
(c) Requirements of Child Support Orders. - A child
support order made by a court of a State is made consis-
tently with this section if -
(1) a court that makes the order, pursuant to the
laws of the State in which the court is located and subsec-
tions (e), (f), and (g) -
Saybibliiniaicnmee
Prrrreerrnerreernrrmrwentnnme
(A) has subject matter jurisdiction to hear the
matter and enter such an order; and
(B) has personal jurisdiction over the contes-
tants; and
(2) reasonable notice and opportunity to be heard is
given to the contestants.
(d) Continuing Jurisdiction. - A court of a State that has
made a child support order consistently with this section
has continuing, exclusive jurisdiction over the order if the
State is the child’s State or the residence of any individual
contestant unless the court of another State, acting in
accordance with subsections (e) and (f), has made a mod-
ification of the order.
(e) Authority To Modify Orders. - A court of a State
may modify a child support order issued by a court of
another State if —
ee
App. 269
(1) the court has jurisdiction to make such a child
support order pursuant to subsection (i); and
(2)(A) the court of the other State no longer has
continuing, exclusive jurisdiction of the child support
order because that State no longer is the child’s State or
the residence of any individual contestant; or
(B) each individual contestant has filed written
consent with the State of continuing, exclusive jurisdic-
tion for a court of another State to modify the order and
assume continuing, exclusive jurisdiction over the order.
(f) Recognition of Child Support Orders. - If 1 or more
child support orders have been issued with regard to an
obligor and a child, a court shall apply the following
rules in determining which order to recognize for pur-
poses of continuing, exclusive jurisdiction and enforce-
ment:
(1) If only 1 court has issued a child support order,
the order of that court must be recognized.
(2) If 2 or more courts have issued child support
orders for the same obligor and child, and only 1 of the
courts would have continuing, exclusive jurisdiction
under this section, the order of that court must be recog-
nized.
(3) If 2 or more courts have issued child support
orders for the same obligor and child, and more than 1 of
the courts would have continuing, exclusive jurisdiction
under this section, an order issued by a court in the
current home State of the child must be recognized, but if
an order has not been issued in the current home State of
Te ee tne
od a sale Be ae ds "
App. 270
the child, the order most recently issued must be recog-
nized.
(4) If 2 or more courts have issued child support
orders for the same obligor and child, and none of the
courts would have continuing, exclusive jurisdiction
under this section, a court having jurisdiction over the
Parties shall issue a child Support order, which must be
recognized.
(5S) The court that has issued an order recognized
under this subsection is the court having continuing,
exclusive jurisdiction under subsection (d).
(g) Enforcement of Modified Orders. — A court of a State
that no longer has continuing, exclusive jurisdiction of a
child support order may enforce the order with respect to
nonmodifiable obligations and unsatisfied obligations
that accrued before the date on which a modification of
the order is made under subsections (e) and (f).
(h) Choice of Law. -
(1) In general. - In a proceeding to establish, mod-
ify, or enforce a child Support order, the forum State’s law
shall apply except as Provided in paragraphs (2) and (3).
(2) Law of state of issuance of order. - In interpret-
ing a child support order including the duration of cur-
rent payments and other obligations of support, a court
shall apply the law of the State of the court that issued
the order.
(3) Period of limitation. - In an action to enforce
arrears under a child support order, a court shall apply
the statute of limitation of the forum State or the State of
App. 271
the court that issued the order, whichever statute pro-
vides the longer period of limitation.
(i) Registration for Modification. — If there is no individ-
ual contestant or child residing in the issuing State, the
party or support enforcement agency seeking to modify,
or to modify and enforce, a child support order issued in
another State shall register that order in a State with
jurisdiction over the nonmovant for the purpose of mod-
_ ification.
CREDIT(S)
2000 Electronic Update
(Added Pub.L. 103-383, § 3(a), Oct. 22, 1994, 108 Stat.
4064, and amended Pub.L. 104-193, Title III, § 322, Aug.
22, 1996, 110 Stat. 2221; Pub.L. 105-33, Title V, § 5554,
Aug. 5, 1997, 111 Stat. 636.)
<General Materials (GM) — References,
Annotations, or Tables>
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1994 Acts. Senate Report No. 103-361, see 1994 U.S.
Code Cong. and Adm. News, p. 3259.
1996 Acts. House Report No. 104-651 and House
Conference Report No. 104-725, see 1996 U.S. Code Cong.
and Adm. News, p. 2183.
1997 Acts. House Report No. 105-149, House Confer-
ence Report No. 105-217, and Statement by President, see
1997 U.S. Code Cong. and Adm. News, p. 176.
App. 272
Amendments
1997 Amendments. Subsec. (f)(4). Pub.L. 105-33,
§ 5554(1) substituted “a court having jurisdiction over the
parties shall issue a child support order, which must be
recognized.” for “a court may issue a child support order,
which must be recognized.”
Subsec. (f)(5). Pub.L. 105-33, § 5554(2) inserted
“under subsection (d)” after “jurisdiction”.
1996 Amendments. Subsec. (a)(2). Pub.L. 104-193,
§ 322(1), substituted “subsections (e), (f) and (i)” for
“subsection (e)”.
Subsec. (b). Pub.L. 104-193, § 322(2), added provi-
sions defining “child’s home State”.
Subsec. (c). Pub.L. 104-193, § 322(3), added “by a
court of a State” preceding “is made”.
Subsec. (c)(1). Pub.L. 104-193, § 322(4), added “and
subsections (e), (f) and (g)” following “located”.
Subsec. (d). Pub.L. 104-193, § 322(5), added “individ-
ual” preceding “cozttestant” and substituted “subsections
(e) and (f)” for “subsection (e)”.
Subsec. (e). Pub.L. 104-193, § 322(6), substituted
“modify a child support order issued” for “make a mod-
ification of a child support order with respect to a child
that is made”.
Subsec. (e)(1). Pub.L. 104-193, § 322(7), added “pur-
suant to subsection (i)” following “order”.
Subsec. (e)(2). Pub.L. 104-193, § 322(8), added “indi-
vidual” preceding “contestant”, wherever appearing, and
App. 273
substituted “with the State of continui: 5, exclusive juris-
diction for a court of another State to modify the order
and assume” for “to that court’s making the modification
and assuming”.
Subsec. (f). Pub.L. 104-193, § 322(9), (10), added sub-
sec. (f). Former subsec. (f) was redesignated (g).
Subsec. (g). Pub.L. 104-193, § 322(9), redesignated
former subsec. (f) as (g). Former subsec. (g) was redesig-
nated subsec. (h).
Pub.L. 104-193, § 322(11), in subsec. heading, substi-
tuted “modified” for “prior” and substituted “subsec-
tions (e) and (f)” for “subsection (e)”.
Subsec. (h). Pub.L. 104-193, § 322(9), redesignated
former subsec. (g) as (h).
Subsec. (h)(2). Pub.L. 104-193, § 322(12)(A), added
“including the duration of current payments and other
obligations of support” following “support order,”.
Subsec. (h)(3). Pub.L. 104-193, § 322(12)(B), added
“arrears under” following “enforce”.
Subsec. (i). Pub.L. 104-193, § 322(13), added subsec.
(i).
Effective and Applicability Provisions
1997 Acts. Amendments by Pub.L. 105-33 made by
sections 5531 to 5556 to take effect as if included in the
enactment of Title III of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (Pub.L.
104-193, Aug. 22, 1996, 110 Stat. 2105), except for amend-
ments made by section 5532(b)(2) {amending section
App. 274
608(a)(3)(A) of Title 42, The Public Health and Welfare),
see section 5557 of Pub.L. 105-33, set out as a note under
section 608 of Title 42, The Public Health and Welfare.
1996 Acts. For effective date of Title III of Pub.L.
104-193, see section 395(a) to (c) of Pub.L. 104-193, set out
as a note under section 654 of Title 42, The Public Health
and Welfare.
Congressional Findings and Declaration of Purpose
Section 2 of Pub.L. 103-383 Provided that:
* * +
[See PL 103-383 at App. 275-278
for congressional intent]
App. 275
UNITED STATES PUBLIC LAWS
103rd Congress - Second Session
Convening January 25, 1994
COPR. © WEST 1994 No Claim to Orig. U.S. Govt. Works
Additions and Deletions are not identified
in this document.
For Legislative History of Act, see LH database
or Report for this Public Law in U.S.C.C. & A.N.
Legislative History section.
PL 103-383 (S 922)
October 20, 1994
FULL FAITH AND CREDIT FOR
CHILD SUPPORT ORDERS ACT
An Act To provide that a State court may not modify
an order of another State court requiring the payment of
child support unless the recipient of child support pay-
ments resides in the State in which the modification is
sought or consents to the seeking of the modification in
that court.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
28 USCA § 1 NOTE
SECTION 1. SHORT TITLE.
This Act may be cited as the “Full Faith and Credit
for Child Support Orders Act”.
App. 276
28 USCA § 1738B NOTE
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS. - The Congress finds that -
(1) there is a large and growing number of child
support cases annually involving disputes between par-
ents who reside in different States;
(2) the laws by which the courts of different juris-
dictions determine their authority to establish child sup-
port orders are not uniform;
(3) those laws, along with the limits imposed by
the Federal system on the authority of each State to take
certain actions outside its own boundaries -
(A) encourage noncustodial parents to relocate
outside the States where their children and the custodial
parents reside to avoid the jurisdiction of the courts of
such States, resulting in an increase in the amount of
interstate travel and communication required to establish
and collect on child Support orders and a burden on
custodial parents that is expensive, time consuming, and
disruptive of occupations and commercial activity;
(B) contribute to the pressing problem of rela-
tively low levels of child support payments in interstate
cases and to inequities in child support payments levels
that are based solely on the noncustodial parent's choice
of residence;
(C) encourage a disregard of court orders
resulting in massive arrearages nationwide;
(D) allow noncustodial parents to avoid the
payment of regularly scheduled child support payments
App. 277
for extensive periods of time, resulting in substantial
hardship for the children for whom support is due and
for their custodians; and
(E) lead to the excessive relitigation of cases
and to the establishment of conflicting orders by the
courts of various jurisdictions, resulting in confusion,
waste of judicial resources, disrespect for the courts,
and a diminution of public confidence in the rule of
law; and
(4) among the results of the conditions described
in this subsection are -
(A) the failure of the courts of the States to give
full faith and credit to the judicial proceedings of the
other States;
(B) the deprivation of rights of liberty and
property without due process of law;
(C) burdens on commerce among the States;
and
(D) harm to the welfare of children and their
parents and other custodians.
(b) STATEMENT OF POLICY. - In view of the find-
ings made in subsection (a), it is necessary to establish
national standards under which the courts of the var-
ious States shall determine their jurisdiction to issue a
child support order and the effect to be given by each
State to child support orders issued by the courts of other
States.
App. 278
(c) PURPOSES. - The Purposes of this Act are -
(1) to facilitate the enforcement of child support
orders among the States;
(2) to discourage continuing interstate controver-
sies over child support in the interest of greater finan-
cial stability and secure family relationships for the
child; and
(3) to avoid jurisdictional competition and conflict
among State courts in the establishment of child sup-
port orders.
SEC. 3. FULL FAITH AND CREDIT FOR CHILD SUP-
PORT ORDERS.
28 USCA § 1738B
(a) IN GENERAL. - Chapter 115 of title 28 United
States Code, is amended by inserting after section 1738A
the following new section:
Ҥ 1738B. Full faith and credit for child support orders
“(a) GENERAL RULE. - The appropriate authorities of
each State ~
“(1) shall enforce according to its terms a child sup-
port order made consistently with this section by a court
of another State; and
“(2) shall not seek or make a modification of such
an order except in accordance with subsection (e).
“(b) DEFINITIONS. ~— In this section:
444
child’ means -
App. 279
“(A) a person under 18 years of age; and
“(B) a person 18 or more years of age with
respect to whom a child support order has been issued
pursuant to the laws of a State.
“‘child’s State’ means the State in which a child
resides.
“ad
child support’ means a payment of money, con-
tinuing support, or arrearages or the provision of a bene-
fit (including payment of health insurance, child care,
and educational expenses) for the support of a child.
“a4
child support order’ -
“(A) means a judgment, decree, or order of a
court requiring the payment of child support in periodic
amounts or in a lump sum; and
“(B) includes -
“(i) a permanent or temporary order; and
“(ii) an initial order or a modification of an
order.
“ ‘contestant’ means -
“(A) a person (including a parent) who -
“(i) claims a right to receive child support;
“(ii) is a party to a proceeding that may
result in the issuance of a child support order; or
“(iii) is under a child support order; and
“(B) a State or political subdivision of a State to
which the right to obtain child support has been
assigned.
App. 280
“ ‘court’ means a court or administrative agency of a
State that is authorized by State law to establish the
amount of child support payable by a contestant or make
a modification of a child support order.
“ ‘modification’ means a change in a child support
order that affects the amount, Scope, or duration of the
order and modifies, replaces, supersedes, or otherwise is
made subsequent to the child support order.
“ ‘State’ means a State of the United States, the Dis-
trict of Columbia, the Commonwealth of Puerto Rico, the
territories and Possessions of the United States, and
Indian country (as defined in section 1151 of title 18).
“(c) REQUIREMENTS OF CHILD SUPPORT ORDERS. -
A child support order made is made consistently with
this section if — :
“(1) a court that makes the order, pursuant to the
laws of the State in which the court is located -
“(A) has subject matter jurisdiction to hear the
matter and enter such an order; and
“(B) has personal jurisdiction over the contes-
tants; and
“(2) reasonable notice and Opportunity to be heard
is given to the contestants.
“(d) CONTINUING JURISDICTION. - A court of a State
that has made a child support order consistently with this
section has continuing, exclusive jurisdiction over the
order if the State is the child’s State or the residence of
any contestant unless the court of another State, acting in
App. 281
accordance with subsection (e), has made a modification
of the order.
“(e) AUTHORITY TO MODIFY ORDERS. - A court of a
State may make a modification of a child support order
with respect to a child that is made by a court of another
State if -
“(1) the court has jurisdiction to make such a child
support order; and
“(2)(A) the court of the other State no longer has
continuing, exclusive jurisdiction of the child support
order because that State no longer is the child’s State or
the residence of any contestant; or
_ “(B) each contestant has filed written consent to
that court’s making the modification and assuming con-
tinuing, exclusive jurisdiction over the order.
“(f) ENFORCEMENT OF PRIOR ORDERS. - A court of
a State that no longer has continuing, exclusive jurisdic-
tion of a child support order may enforce the order with
respect to nonmodifiable obligations and unsatisfied obli-
gations that accrued before the date on which a modifica-
tion of the order is made under subsection (e).
“(g) CHOICE OF LAW. -
“(1) IN GENERAL. - In a proceeding to establish,
modify, or enforce a child support order, the forum
State’s law shall apply except as provided in paragraphs
(2) and (3).
“(2) LAW OF STATE OF ISSUANCE OF ORDER. -
In interpreting a child support order, a court shall apply
the law of the State of the court that issued the order.
App. 282
“(3) PERIOD OF LIMITATION. -— In an action to
enforce a child support order, a court shall apply the
statute of limitation of the forum State or the State of the
court that issued the order, whichever statute provides
the longer period of limitation.”.
28 USCA Ch. 115
(b) TECHNICAL AMENDMENT. - The chapter analysis
for chapter 115 of title 28, United States Code, is amended
by inserting after the item relating to section 1738A the
following new item:
“1738B. Full faith and credit for child support orders.”.
Approved October 20, 1994.
PL 103-383, 1994 § 922
App. 283
5 U.S.C. § 552a. Records maintained on individuals
(a) Definitions. - For purposes of this section -
(1) the term “agency” means agency as defined in
section 552(e) of this title;
(2) the term “individual” means a citizen of the
United States or an alien lawfully admitted for perma-
nent residence;
(3) the term “maintain” includes maintain, collect,
use, or disseminate;
(4) the term “record” means any item, collection, or
grouping of information about an individual that is main-
tained by an agency, including, but not limited to, his
education, financial transactions, medical history, and
criminal or employment history and that contains his
name, or the identifying number, symbol, or other identi-
fying particular assigned to the individual, such as a
finger or voice print or a photograph;
(5) the term “system of records” means a group of
any records under the control of any agency from which
information is retrieved by the name of the individual or
by some identifying number, symbol, or other identifying
particular assigned to the individual;
(6) the term “statistical record” means a record in a
system of records maintained for statistical research or
reporting purposes only and not used in whole or in part
in making any determination about an identifiable indi-
vidual, except as provided by section 8 of title 13;
(7) the term “routine use” means, with respect to
the disclosure of a record, the use of such record for a
“4 ee ee ee ae en ee ee
App. 284
purpose which is compatible with the purpose for which
it was collected;
(8) the term “matching program” —
(A) means any computerized comparison of -
(i) two or more automated systems of
records or a system of records with non-Federal records
for the purpose of -
(I) establishing or verifying the eligi-
bility of, or continuing compliance with Statutory and
regulatory requirements by, applicants for, recipients or
beneficiaries of, Participants in, or providers of services
with respect to, cash or in-kind assistance or payments
under Federal benefit programs, or
(II) recouping payments or delinquent
debts under such Federal benefit programs, or
(ii) two or more automated Federal person-
nel or payroll systems of records or a system of Federal
personnel or payroll records with non-Federal records,
(B) but does not include —
(i) matches performed to produce aggre-
gate statistical data without any personal identifiers;
(ii) matches performed to Support any
research or statistical Project, the specific data of which
may not be used to make decisions concerning the rights,
benefits, or Privileges of specific individuals;
App. 285
(iii) matches performed, by an agency (or
component thereof) which performs as its principal func-
tion any activity pertaining to the enforcement of crimi-
nal laws, subsequent to the initiation of a specific
criminal or civil law enforcement investigation of a
named person or persons for the purpose of gathering
evidence against such person or persons;
(iv) matches of tax information (I) pursuant
to section 6103(d) of the Internal Revenue Code of 1986,
(II) for purposes of tax administration as defined in sec-
tion 6103(b)(4) of such Code, (III) for the purpose of
intercepting a tax refund due an individual under author-
ity granted by section 404(e), 464, or 1137 of the Social
Security Act; or (IV) for the purpose of intercepting a tax
refund due an individual under any other tax refund
intercept program authorized by statute which has been
determined by the Director of
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