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Wheeler v. Wheeler3/11/2005
DECISION AND JUDGMENT ENTRY
{ } This is an appeal from a divorce decree issued by the Ottawa County Court of Common Pleas. Because we conclude that the trial court failed to make a statutorily mandated finding to support denial of visitation to appellant, we vacate that portion of the decree. In all other respects, the judgment is affirmed.
{ } Appellant, Gene Wheeler, and appellee, Julie A. Wheeler, were married in 1976. Two children were born of the union.
{ } In 1999, appellant was seriously injured in a traffic accident. The cracked vertebrae and closed head injury he sustained in this accident required extensive medical treatment and prolonged convalescence.
{ } At trial, appellee characterized appellant before the accident as a warm gentle person. After the accident, however, he changed. He became mercurial and violent. At one point, he threw appellee through a glass aquarium. His treatment of the children was likewise fierce.
{ } On March 27, 2002, appellee sought legal separation from appellant on the ground of incompatibility. On September 24, 2002, appellee amended her complaint, seeking a divorce, custody of the children and a reasonable division of the marital property. While the matter was pending, appellant obtained a personal injury settlement in the net amount of $203,441.
{ } At the conclusion of the final hearing on this matter, the magistrate awarded appellee a divorce on the grounds of incompatibility and gave her custody of the two children. The magistrate also ordered that, because of appellant's violent behavior, appellant have no contact with the children until further order of the court. Appellant was also ordered to pay child support based on his pre-accident earnings of $14,500. The magistrate directed that $10, 000 of the personal injury settlement be set aside for the two children for their loss consortium claim and an additional $46, 450 set aside for future child support payments. Appellee was also awarded $32, 625 from the settlement to compensate her for her share of appellant's lost wages between the time of the accident and trial. The magistrate denied appellant's request for spousal support.
{ } Appellant's objections to the magistrate's decision were overruled.
{ } From this judgment, appellant brings this appeal, setting forth the following five assignments of error:
{ } "I. THE TRIAL COURT ERRED WHEN CONCLUDING THAT THE PARTIES' MINOR CHILDREN SHOULD RECEIVE $10, 000 FOR LOST CONSORTIUM AWARDS.
{ } "II. THE TRIAL COURT ERRED IN CONCLUDING THAT GENE WHEELER SHOULD PAY CHILD SUPPORT BASED UPON HIS INCOME OF $14, 500.00 PRIOR TO HIS MARCH 23, 1999 AUTOMOBILE ACCIDENT.
{ } "III. THE TRIAL COURT ERRED WHEN DETERMINING PLAINTIFF WAS ENTITLED TO A LOST INCOME AWARD FROM SETTLEMENT PROCEEDS OF THE PERSONAL INJURY CLAIM TO GENE WHEELER WHEN PLAINTIFF FAILED TO INTRODUCE ANY EVIDENCE REGARDING APPELLANT'S INCOME.
{ } "IV. THE TRIAL COURT ERRED WHEN CONCLUDING THAT NO VISITATION SHOULD OCCUR BETWEEN APPELLANT AND THEIR CHILDREN UNTIL FURTHER ORDER OF THE COURT.
{ } "V. THE TRIAL COURT ERRED BY CONCLUDING THAT APPELLANT SHOULD NOT RECEIVE ANY ALIMONY FROM APPELLEE."
{ } Domestic Relations Courts have broad discretion in determining an equitable distribution of martial property. Mayer v. Mayer (1996), 110 Ohio App.3d 233, 236. On review, appellate courts may not disturb a trial court's distributive award of property absent an abuse of discretion. Kelly v. Kelly (1996), 111 Ohio App.3d 641, 642. An abuse of discretion is more than an error of law or a mistake of fact, the term connotes that the c
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