Accused of emotionally and physically abusing his daughter. Steven Schottenstein is currently the president of the Jewish Federation of Columbus, OH. Steven has connections to Congregation Ahavas Sholom synagogue in Columbus and Congregation Torat Emet - The Main Street Synagogue in Bexley, OH.
In Cleveland the Shottenstein family has a great deal of influence. There are many buildings carrying the Schottenstein name such as "The JCC Schottenstein Auditorium, the Cleveland Schottenstein Chabad House.
Table of Contents:
Articles About The Case
- A Teen's Courage in the Face of Her Father's Abuse (12/15/2001)
- Schottenstein v. Schottenstein (11/29/2001)
- Are All The Schottenstein's Guilty of Corrpution? (10/24/2002)
- The Supreme Court of Ohio (02/04/2003)
- Is Judge James Mason Biased? (04/2004)
- Teen's Suit: Rich Man A Poor Dad (07/29/2004)
- Family Court, New York County (08/22/2005)
- M/I Schottenstein Homes (MHO) (09/07/2007)
- Is Child Support An Option, Does It Speak To Who We Are As A People? (09/24/2007)
- Stockholders of JP - What Would You Do With This Partner? (10/16/2007)
Articles on the Background on Steven Schottenstein
- Steven Schottenstein, M/I Homes, Inc (MHO) - Salary, Compensation, Stock Options
- Columbus Jewish leader dead at 75 (03/2004)
- M/I Schottenstein Homes, Inc. Names New president and Announces Senior Management Changes.
- Columbus Jewish Federation - Federation Past Presidents (2006)
- National Housing Endowment Gets $1 Million Grant from M/I Homes (03/22/2006)
- M/I sends off longtime exec with plenty of thanks for years of service (08/04/2006)
- M/I Homes loses chief operating officer Steven Schottenstein resigns as chief operating officer after 27 years with M/I Homes, Inc. (06/16/2006)
- Seperation Agreement between Steven Schottenstein (Executive) and M/I Homes, Inc (07/27/2006)
- Jeffrey backers to present ideas to save mansion (09/21/2006)
- M/I Homes fills empty board seat (11/10/2006)
- M/I profit up despite charges, including $4.31M for former COO (07/27/2007)
- Lion of Judah Women Experience Schottenstein Judaica Collection (10/23/2007)
- The 2008 Grand Event (12/2007)
- Executive Board Accepts Nominating Committee Recommendations
News Making News - December 15, 2001
Letter To the Editor
Schottenstein Abuse of Power
"Your goal in the dilemma as a custodial parent to your children is to strip permanently and forever, irrevocably, any rights of the children with their mother; is that what I heard you say?"
My name is Sarah Elizabeth Schottenstein and I have more courage than any adult in Columbus [Ohio] with the possible exception of my mother. I am sixteen years old, an honor student and I am here to tell you that my father, Steven Schottenstein, is a child abuser who has used physical violence on every member of my family. He has pushed, hit, thrown, twisted arms, choked, and smothered us. My father has used intimidation, isolation, emotional abuse, economic abuse, legal abuse and this past year has even had me locked up in institutions to cover up his actions. I am compelled to use the press to make known the crimes that have been committed against my family and me by my father because no one in the courts, especially Judge Jim Mason, will listen to my story. No one in Columbus will stand up to one of the richest men in town. They are all cowards.
When I was a student at the Columbus School for Girls, I won the Citizenship Award. My younger sister Abby, just received the same honor this past June.
None of that matters in Judge Mason's court. In 1998 my mother filed for divorce in order to protect us from my abusive father. My father dragged her back into court in a custody battle. Children's voices weren't heard in Judge Mason's courtroom. We were treated as non-existent individuals and forced against our will to be with my father. When we ran to our mother, my father had her jailed.
My mother was denied her rightful interest in my father's company. They were married for fifteen years. My mother raised us, while my father built up MI Schottenstein Homes. He became one of the richest men in this city. He makes 2.5 million dollars a year and has never paid a penny of child support in three years.
Steven Schottenstein, Corporate Chief Operating Officer at MI Schottenstein Homes, has failed his responsibilities as a father, a parent. He was a weekend father who felt he had to dominate everything to ensure he had absolute control. When my mother fought for our freedom, my father responded with a barrage of well-orchestrated litigation. He manipulated facts to decimate my mother, my sisters and me.
Why are we the only ones with enough courage to stand up to this bully?
My Aunt Jeanie Schottenstein, who co-chairs the domestic violence league, refused to help. She is the wife of Jay Schottenstein, Value City Owner, and close friend to my father. The Columbus Dispatch failed to act. Joel Chow from NBC turned his head too. Ronald Solove, my previous Guardian at litem, was also an ex-employee of the family law firm, Schottenstein Zox and Dunn. Mr. Solove neglected to listen to my sisters and my wishes and desires. He sided with my father. He crucified my mother, and helped sentence my mother to jail. This man destroyed the best years of my life, along with my family. Rhonda Schottenstein, my stepmother, signed the check which had me admitted into Cross Creek Manor, a juvenile delinquent camp. Dr. Steven Beck, a psychologist, wrote a personal letter to Judge Jim Mason that admitted me into Menniger Clinic, under false pretenses. He refused to testify about it. Barry H. Wolinetz, my abusive father's well-paid attorney, verbally attacked me in court, while I was testifying. My attorney had been fired.
No one wanted to fight a Schottenstein except us - his victims. Will nobody help? Will nobody stand up? A week after teachers from Columbus School for Girls had written letters of praise on my behalf about my achievements, my father had me locked up, first in Cross Creek Manor in Utah. There I was surrounded by suicidal teens, drug addicts, alcoholics, and prostitutes. The staff berated me, I had no contact with anyone, I was isolated from society; it was as though I didn't exist. Later my father had me moved to the Menninger Clinic, a psychiatric hospital in Kansas. They attempted to brainwash me, took every ounce of freedom I was ever granted, and forced me to live with a coke addict. My mail was monitored and so was every phone call with my mother, and my two younger sisters.
We are going back to court again. This time Judge James. W. Mason should disqualify himself. We - the children - are not irrelevant. This judge received eight citations of error for his prior decisions on our case. The Franklin County, Ohio, Tenth Appellate District stated," We no longer live in a time when children are mere chattels, with no rights and no inherent merit. We no longer live in a time when maxims such as 'spare the rod and spoil the child' are generally accepted. Instead, a parent who uses a rod is at real risk of child abuse charges, and/or loss of custody through juvenile court proceedings. "
I, Sarah Elizabeth Schottenstein, am a citizen of our United States of America. I am entitled by our United States Constitution to express my wishes and desires, to be treated equally, and be respected by every human being. Shame on those who think otherwise, and don't believe in justice. A promise I must propose, I will take on the responsibility, with the help of others, to ensure that children don't live in a world of violence; but more importantly are able to be free. Free from manipulation, money, power and control. Children's Rights are here to stay!
Sarah Elizabeth Schottenstein © 2001
Columbus Law - November 29, 2001
http://ds.columbuslawlib.org:8080/docushare/dsweb/Services/Document-1151IN THE COURT OF APPEALS OF OHIO
O P I N I O N
Rendered on November 29, 2001
Kemp, Schaeffer, Rowe & Lardiere Co., L.P.A., and Harold R. Kemp, for appellant.
Baker & Hostetler, LLP, Barry H. Wolinetz and David C. Levine, for appellee.
Angela F. Albert Brown, for third-party appellants.
Ronald L. Solove, Guardian ad litem.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations.
On January 29, 1998, Jill D. Schottenstein filed a complaint in the Franklin County Court of Common Pleas, Division of Domestic Relations, seeking a divorce from Steven Schottenstein. Mr. Schottenstein filed an answer and counterclaim for divorce. The parties had been married since April 19, 1983, and they had three children: Sarah, born February 8, 1986; Ashley, born June 20, 1987; and Abby, born November 21, 1988. On March 2, 1998, a guardian ad litem was appointed.
On March 26, 1998, a magistrate issued temporary orders, designating Ms. Schottenstein as the residential parent and legal custodian of the children. Mr. Schottenstein was granted companionship/visitation rights consisting of two evenings during the week and alternating weekends. Mr. Schottenstein was ordered to pay temporary child support in the amount of $8,889.67 per month and temporary spousal support in the amount of $4,500 per month. On May 22, 1998, the parties agreed to modify this order, with each parent having the children for alternating weeks. Mr. Schottenstein was to pay $13,657.46 per month for child and spousal support.
On June 3, 1998, the guardian ad litem filed his second preliminary report, indicating it was in the best interests of the children that Mr. Schottenstein be designated as the temporary residential parent and legal custodian. Further, the guardian ad litem recommended that Ms. Schottenstein's companionship rights be suspended until she completed mental health counseling and treatment.
On August 6, 1998, a magistrate's order was journalized in which Mr. Schottenstein was designated the residential parent and legal custodian pending further hearing on the matter. Ms. Schottenstein was limited to telephone contact with the children.
On August 19, 1998, Ms. Schottenstein filed a motion for the appointment of an attorney to represent the children. On August 27, 1998, the magistrate appointed an attorney to represent the children, as their wishes conflicted with what the guardian ad litem had determined was in their best interests.
On August 28, 1998, the magistrate filed an interim order, awarding Ms. Schottenstein supervised visitation with the children in accordance with the recommendations of the children's counselor.
On November 16, 1998, a magistrate's order was journalized, pursuant to the parties' agreement, designating Mr. Schottenstein the temporary residential parent and legal custodian, with each parent having companionship/visitation on alternating weeks. Pursuant to this order, Ms. Schottenstein was prohibited, absent an emergency, from seeking medical attention for or providing medication to the children without the approval of Mr. Schottenstein or the guardian ad litem if Mr. Schottenstein was not available.
On November 17, 1998, an order was journalized wherein Mr. Schottenstein's child support obligation was terminated, and he was ordered to pay $12,000 per month in spousal support.
On March 11, 1999, the guardian ad litem filed a motion for an order modifying parental rights and responsibilities, asserting that the trial court should restrict Ms. Schottenstein's involvement with her children in order to protect their best interests. On June 1, 1999, the guardian ad litem filed his fourth report in which he opined that Mr. Schottenstein should be designated the residential parent and legal custodian and that Ms. Schottenstein's companionship rights be restricted to supervised visits. In the interim, a hearing before a magistrate on the allocation of parental rights and responsibilities for purposes of the final decree of divorce was conducted.
On August 18, 1999, an entry was journalized joining M/I Schottenstein Homes, Inc. and The Steven Schottenstein Irrevocable Trust to the action.
On September 2, 1999, the magistrate issued a decision on the allocation of parental rights and responsibilities for the final divorce decree. As an initial matter, the magistrate first found that shared parenting was not in the best interests of the children because of the continued animosity between the parties. The magistrate had interviewed the children individually, and each indicated her desire to reside with Ms. Schottenstein. For a variety of reasons, the magistrate found it was in the best interests of the children that Mr. Schottenstein be designated the residential parent and legal custodian. Ms. Schottenstein was granted visitation consisting of alternate weekends and one weekday evening, plus alternating holidays/vacations, and alternate weeks during the summer.
The magistrate's decision/proposed order was to be effective upon the trial judge's approval. Ms. Schottenstein and the children each filed objections to the September 2, 1999 magistrate's decision.
On February 23, 2000, Mr. Schottenstein filed a motion for contempt against Ms. Schottenstein for her alleged interference with his custody of the children. As a result, a hearing was conducted. The trial court, despite the requests of Ms. Schottenstein and all three children, refused to consider the children's testimony, deeming it "irrelevant." On March 8, 2000, the magistrate found Ms. Schottenstein in contempt and sentenced her to twenty days in jail. Ms. Schottenstein appealed the contempt finding to this court, and we granted a stay. On December 12, 2000, this court reversed the contempt finding. This court determined that the trial court should have considered the children's testimony.
On March 16, 2000, the trial court adopted the September 2, 1999 magistrate's decision with respect to allocation of parental rights and responsibilities but modified the recommended visitation schedule. Ms. Schottenstein was granted alternate weekends with no mid-week visitation.
On June 23, 2000 and July 31, 2000, Mr. Schottenstein filed motions for contempt against Ms. Schottenstein for her alleged failure to comply with the March 16, 2000 order. Mr. Schottenstein also filed a motion to suspend or terminate Ms. Schottenstein's visitation. Under the March 16, 2000 order, Mr. Schottenstein was entitled to custody of the children on June 18, 2000 (Father's Day) and July 30, 2000. On July 31, 2000, Ms. Schottenstein's visitation was suspended pursuant to the issuance of a provisional writ of habeas corpus issued in a separate proceeding.
A hearing was held on the above contempt motions. Sarah Schottenstein, then age 14, testified at the hearing.
On September 15, 2000, the trial court found Ms. Schottenstein in contempt for her failure to effect a transfer of the children to Mr. Schottenstein, in violation of the March 16, 2000 order. Ms. Schottenstein was sentenced to thirty days in jail. Ms. Schottenstein could purge this contempt by forgoing two weekend visitations (as compensatory time for Mr. Schottenstein); by paying a $1,000 fine; and by paying counsel for Mr. Schottenstein $3,500. Ms. Schottenstein filed a notice of appeal with this court on September 26, 2000, and such appeal has been assigned case No. 00AP-1088. The Schottenstein children have also appealed from the same order. On September 29, 2000, this court granted Ms. Schottenstein's motion for a stay of execution pending appeal.
On November 8, 2000 and November 9, 2000, a hearing was held on additional and multiple contempt motions filed by each party. On November 9, 2000, the trial court issued an order finding Ms. Schottenstein in indirect criminal contempt and sentenced her to forty-five days in jail. On November 10, 2000, Ms. Schottenstein filed a notice of appeal with this court, and such appeal has been assigned case No. 00AP-1284. On November 13, 2000, this court again granted Ms. Schottenstein's motion for a stay of execution.
On January 8, 2001, the trial court filed a judgment entry pertaining to the same contempt motions and the November 8, 2000 and November 9, 2000 hearing thereon. The trial court denied Ms. Schottenstein's motions for contempt against Mr. Schottenstein. The trial court found Ms. Schottenstein in indirect criminal contempt for her "blatant and persistent disregard of this court's order and for her willful and repeated failures to return the children to the defendant on October 26, 2000 and continuing from October 29, 2000 through November 9, 2000." (Jan. 8, 2001 judgment entry at 5.) The Schottenstein children have also appealed from this order, and this appeal has been assigned case No. 01AP-94.
A trial on property and spousal support matters was held in April and May 2000. The parties submitted written closing arguments and proposed findings of fact and conclusions of law. On January 8, 2001, the trial court filed its decision and a judgment entry/decree of divorce. In this decision, the trial court denied Ms. Schottenstein's January 11, 2000 motion to remove the guardian ad litem. The trial court rejected Ms. Schottenstein's assertion that the guardian ad litem was biased and had failed to discharge his duties.
As to the allocation of parental rights and responsibilities, the trial court incorporated its March 16, 2000 decision with certain modifications. Again, Mr. Schottenstein was designated the residential parent and legal custodian of the children. Ms. Schottenstein was granted visitation on alternate weekends with no mid-week visitation. The children were to be with Mr. Schottenstein on Rosh Hashanah, Yom Kippur and Passover. In addition, Ms. Schottenstein was prohibited from removing the children from the central Ohio area during her visitation times, including summers and holidays, without the prior written approval of Mr. Schottenstein.
With respect to property issues, the trial court found that the appreciation of the M/I Schottenstein Homes, Inc. stock held by The Steven Schottenstein Irrevocable Trust (hereinafter "Trust") and The Steven Schottenstein 1994 Descendants Trust ("Descendants Trust") was not caused by marital labor or contribution. The trial court further found that Ms. Schottenstein failed to prove that she had any claim against the separate property holdings of the Trust or the Descendants Trust and, therefore, dismissed the trusts from the proceedings.
Among other findings, the trial court found that the value of Mr. Schottenstein's M/I Schottenstein Homes, Inc. 401(k) profit sharing plan as of January 29, 1998, the de facto date of the divorce, was $206,571. The trial court concluded that Mr. Schottenstein would retain such amount, and no award from the 401(k) plan was made to Ms. Schottenstein.
The trial court valued the marital household goods and furnishings in the possession of Ms. Schottenstein at $120,000. At trial, Ms. Schottenstein had proffered testimony that the value of such personal property was $15,487.50. The trial court excluded this rebuttal evidence. The trial court ordered that the parties retain all household goods and furnishings in their respective possession at the time of the final hearing. On the balance sheet attached to the divorce decree, Ms. Schottenstein was attributed the $120,000 value of all marital household goods and furnishings.
The trial court awarded Ms. Schottenstein spousal support of $12,000 per month for four years, plus fifteen percent of the total of Mr. Schottenstein's annual performance bonus from his employer for a term of four years.
As to attorney fees, the trial court ordered Mr. Schottenstein pay a total of $200,000 toward Ms. Schottenstein's attorney fees. Such award was reduced by $25,000 (representing interim payments already made by Mr. Schottenstein) and $31,099 (representing agreed credits against Ms. Schottenstein's share of the property division and as a result of Ms. Schottenstein being awarded an unequal division of marital assets).
On January 9, 2001, Ms. Schottenstein appealed from the trial court's judgment entry/decree of divorce. The Schottenstein children have also appealed from the final divorce decree. These appeals have been assigned case Nos. 01AP-36 and 01AP-95.
On January 17, 2001, Mr. Schottenstein filed yet another motion for contempt against Ms. Schottenstein for her alleged failure to comply with the trial court's January 8, 2001 order—the final decree of divorce. The bases for such motion included allegations that Ms. Schottenstein had interfered with Mr. Schottenstein's custody and had improperly sought medical attention for the children. A hearing was held on the motion. On February 20, 2001, the trial court issued a judgment entry finding Ms. Schottenstein in indirect criminal contempt. Specifically, the trial court found that Ms. Schottenstein failed to return two of the children to Mr. Schottenstein and sought medical attention for the children. Ms. Schottenstein was fined $1,000, was ordered to pay Mr. Schottenstein's counsel $16,185, and was sentenced to ninety days in jail.
Ms. Schottenstein has filed an appeal from this contempt finding and has again obtained a stay of the trial court's February 20, 2001 order pending the appeal. This appeal has been assigned case No. 01AP-227.
This court has consolidated the appeals in case Nos. 00AP-1088, 00AP-1284, 01AP-36, 01AP-94, 01AP-95 and 01AP-227.
In case No. 00AP-1088, Ms. Schottenstein sets forth the following assignments of error in relation to the trial court's September 15, 2000 order finding her in contempt:
1. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY LIMITING THE TESTIMONY OF SARAH SCHOTTENSTEIN REGARDING HER INDEPENDENT AND AFFIRMATIVE WISH NOT TO VISIT WITH HER FATHER.
2. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING APPELLANT IN CONTEMPT OF COURT.
3. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUING A PURGE ORDER AND PUNISHMENT THAT WAS INAPPROPRIATE AND ILLEGAL.
In this same appeal, the minor children assign the following errors, which are identical to their mother's:
1. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY LIMITING THE TESTIMONY OF SARAH SCHOTTENSTEIN REGARDING HER INDEPENDENT AND AFFIRMATIVE WISH NOT TO VISIT WITH HER FATHER.
2. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING APPELLANT IN CONTEMPT OF COURT.
3. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUING A PURGE ORDER AND PUNISHMENT THAT WAS INAPPROPRIATE AND ILLEGAL.
In case No. 00AP-1284, Ms. Schottenstein has assigned the following as error in relation to the trial court's November 9, 2000 order finding her in contempt:
1. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING THAT MRS. SCHOTTENSTEIN WAS GUILTY OF INDIRECT CRIMINAL CONTEMPT.
2. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING APPELLANT IN CONTEMPT OF COURT.
3. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO FIND MR. SCHOTTENSTEIN IN CONTEMPT OF COURT AND AWARDING MRS. SCHOTTENSTEIN ATTORNEY[']S FEES AND EXPENSES.
4. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING PUNISHMENT THAT WAS INAPPROPRIATE AND ILLEGAL.
In case No. 01AP-94, the minor children assign the following as error in relation to the same contempt finding:
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY FINDING APPELLANT-MOTHER IN INDIRECT CRIMINAL CONTEMPT FOR HER ALLEGED INTERFERENCE WITH APPELLEE-FATHER'S CUSTODY OF THE MINOR CHILDREN.
A. THE TESTIMONY OF THE PARTIES' MINOR CHILDREN ESTABLISHED THAT THEY INDEPENDENTLY AND AFFIRMATIVELY REFUSED TO RETURN TO THEIR FATHER, WHICH CONSTITUTED A DEFENSE TO THE CONTEMPT BASED ON INTERFERENCE WITH CUSTODY.
B. THE TRIAL COURT ERRED BY LIMITING THE SCOPE OF THE TESTIMONY OF THE MINOR CHILDREN AT THE CONTEMPT HEARING.
C. THE TRIAL COURT ERRED BY FINDING THE TESTIMONY OF THE MINOR CHILDREN IMMATERIAL AND IRRELEVANT.
In case No. 01AP-36, Ms. Schottenstein asserts the following errors in relation to the final divorce decree:
1. The trial court erred and abused its discretion by designating Appellee as the children's custodian as such a designation was contrary to law and against the manifest weight of the evidence.
A. The trial court abused its discretion and violated the children's rights when it refused to ascertain the children's wishes as to custodial placement and failed to follow the children's wishes to live with appellant as expressed to the magistrate.
B. The trial court erred and abused its discretion by disregarding the fact that appellant had been the children's exclusive and primary caregiver during their entire lifetimes and failing to award custody to appellant due to her role as the primary caretaker.
C. The trial court's decision awarding Appellee custody of the minor children was against the manifest weight of the evidence and constituted an abuse of discretion when the evidence showed that the children should be placed with appellant.
D. The trial court erred and abused its discretion by failing to remove the guardian ad litem.
E. The trial court erred and abused its discretion by not permitting appellant to remove the children from central Ohio.
F. The trial court erred and abused its discretion by awarding Steve companionship with the children on all Jewish holidays.
2. The Trial Court erred as a matter of law in dismissing the Trust as a party from this divorce action and abused its discretion in making the property division by failing to award Appellant one-half of the marital appreciation of stock; failing to award Appellant passive investment performance associated with her one-half interest in the marital 401(K) account; and for attributing all of the household belongings to Appellant.
A. The Trial Court erred as a matter of law in dismissing the Trust at the close of Plaintiff's case when the party seeking dismissal had the burden of proof and had not met such burden.
B. The facts clearly prove that Steve actively and directly participated in the decision making process as to M/I so as to require classification of the "appreciation" as "active" and "marital" in nature.
C. In dividing a marital asset equally, it is an abuse of discretion and contrary to law to summarily exclude clear passive investment performance associated with the asset which occurred from the stipulated de facto date of divorce until the date of actual division.
D. The trial court erred and abused its discretion by attributing the value of all personal property to Appellant.
3. The trial court abused its discretion by awarding spousal support to Appellant for only four years in duration and failing to award appropriate attorneys fees.
In case No. 01AP-95, the minor children set forth several assignments of error in relation to the divorce decree, all of which challenge the trial court's custody and visitation determinations:
I. THE TRIAL COURT ERRED IN GRANTING APPELLEE, FATHER, FULL CUSTODY OF THE MINOR CHILDREN AS THE DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
A. AN INDEPENDENT AND FAIR REVIEW OF THE EVIDENCE BY THIS COURT WILL ESTABLISH THAT APPELLANT, MOTHER, SHOULD HAVE BEEN AWARDED CUSTODY OF THE MINOR CHILDREN AS THE TRIAL COURT ERRED IN ANALYZING THE STATUTORY FACTORS OF OHIO REVISED CODE SECTION 3109.04.
1. THE MINOR CHILDREN, SARAH, AGE 15, ASHLEY, AGE 13, AND ABBY, AGE 12, ARE OF AN AGE AND MATURITY LEVEL TO EXPRESS THEIR DESIRES AND HAVE ADAMANTLY EXPRESSED THEIR DESIRE TO BE PLACED WITH APPELLANT, MOTHER.
2. THE TRIAL COURT ERRED BY NOT CONSIDERING THE EVIDENCE WHICH INDICATED APPELLANT, MOTHER, WAS THE PRIMARY CARE GIVER OF THE CHILDREN AND BY IGNORING THE APPELLEE, FATHER'S TESTIMONY THAT HE WAS MINIMALLY INVOLVED WITH THE CHILDREN PRIOR TO THE DIVORCE PROCEEDINGS.
B. THE TRIAL COURT ERRED BY SELECTIVELY RELYING ON THE PSYCHOLOGICAL/PSYCHIATRIC EXPERT TESTIMONY TO AWARD CUSTODY TO APPELLEE, FATHER, WHEN THE EXPERT EVIDENCE CONSIDERED IN ITS ENTIRETY ESTABLISHES THAT APPELLEE FATHER'S PSYCHOLOGICAL ISSUES WERE THE SAME OR SIMILAR TO APPELLANT, MOTHER'S.
1. THE TRIAL COURT ERRED BY IGNORING THE EXPERT TESTIMONY CONCERNING THE PSYCHOLOGICAL DAMAGE TO THE CHILDREN WHEN PLACING THEM WITH A PARENT THEY DO NOT WISH TO BE PLACED WITH.
2. AN INDEPENDENT REVIEW OF THE EXPERT TESTIMONY COUPLED WITH THE CHILDREN'S EXPRESSED DESIRE TO LIVE WITH APPELLANT, MOTHER, WILL ESTABLISH THAT THE TRIAL COURT ERRED BY AWARDING CUSTODY TO APPELLEE, FATHER.
C. THE TRIAL COURT ERRED BY IGNORING THE STATUTORY FACTOR REQUIRING THE COURT TO CONSIDER WHICH PARENT WOULD BE MORE LIKELY TO FACILITATE VISITATION WITH THE OTHER PARENT AND THE WISHES OF THE CHILDREN'S PARENTS REGARDING THEIR CARE.
1. THE APPELLEE, FATHER ADAMANTLY TESTIFIED THAT IT WAS HIS DESIRE TO BE AWARDED CUSTODY OF THE CHILDREN AND THAT IF AWARDED CUSTODY HE WANTED APPELLANT, MOTHER, TO "NEVER SEE THESE CHILDREN AGAIN."
2. THE TRIAL COURT ERRED WHEN IT ALLOWED DR. TARPEY TO TESTIFY OVER OBJECTION WHY APPELLEE, FATHER, WOULD MAKE SUCH A STATEMENT.
D. THE TRIAL COURT ERRED WHEN IT IGNORED APPELLEE, FATHER'S, HISTORY OF EPISODIC LOSS OF CONTROL WITH THE CHILDREN WHEN SUCH BEHAVIOR WAS CONSISTENT WITH HIS PSYCHOLOGICAL AND PSYCHIATRIC PROFILES.
1. THE TRIAL COURT ERRED WHEN IT ORDERED APPELLANT, MOTHER, TO UNDERGO PSYCHOTHERAPY BUT DID NOT REQUIRE APPELLEE FATHER TO SEEK COUNSELING REGARDING HIS EPISODIC LOSS OF CONTROL BEHAVIOR.
In case No. 01AP-227, Ms. Schottenstein submits the following assignments of error in relation to the trial court's February 20, 2001 post-decree order finding her in contempt:
1. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING TESTIMONY REGARDING EVENTS THAT OCCURRED PRIOR TO THE FINAL DECREE AND IN FINDING APPELLANT GUILTY OF CONTEMPT RELATING TO ORDERS THAT PREDATED THE DATE OF THE FINAL DECREE.
2. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY REFUSING TO NOTIFY APPELLANT THAT SHE WAS BEING TRIED FOR CRIMINAL CONTEMPT AND FINDING THAT APPELLANT WAS GUILTY OF INDIRECT CRIMINAL CONTEMPT.
3. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY REFUSING TO FOLLOW THE LAW OF THE CASE WHICH REQUIRED THE TRIAL COURT TO INTERVIEW THE CHILDREN AND EXPLAIN THE COURT'S RULING TO THE CHILDREN.
4. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING APPELLANT IN CONTEMPT OF COURT FOR INTERFERENCE WITH APPELLEE'S CUSTODY.
5. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING APPELLANT IN CONTEMPT OF COURT FOR SEEKING MEDICAL TREATMENT FOR THE CHILDREN.
6. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING PUNISHMENT THAT WAS INAPPROPRIATE AND ILLEGAL.
On January 16, 2001, Ms. Schottenstein filed a motion with this court in case Nos. 00AP-1088 and 00AP-1284, seeking a determination that these appeals are moot. She argues that the order(s) from which she originally appealed have been dismissed and/or dissolved pursuant to the final decree of divorce filed January 8, 2001. In response, Mr. Schottenstein has filed a memorandum contra this motion. On March 21, 2001, this court filed a journal entry indicating that this motion would be determined with the merits of the underlying appeals.
Mr. Schottenstein, appellee, has filed a motion to dismiss the appeals of the children in case Nos. 01AP-94 and 01AP-95. His bases for such motion are as follows: (1) no proper person has authorized any appeal on behalf of the children; (2) there is no statutory or common law authority permitting minor children to appeal from a judgment or decree in a divorce case when they are not parties to the judgment; (3) it is not the function of guardians ad litem and children's court-appointed attorneys to handle appellate matters; and (4) allowing children to appeal cases between their parents is against public policy. Appellant and the children's attorney advocate have filed memoranda contra appellee's motion.
Addressing the motions first, the motion filed by Mr. Schottenstein which seeks a dismissal of the appeals filed on behalf of his children is denied. The minor children of Mr. and Ms. Schottenstein were joined as parties in the action below and, as indicated infra, were independently represented by counsel. As parties, they have a right to appeal, especially such significant matters regarding where they spend their time and where they reside. We find no support for the proposition that their appeal is "unauthorized." Similarly, as parties who enjoy a right to appeal, such appeal is not against public policy.
We also deny the motion of Ms. Schottenstein seeking a declaration that two of the appeals are now moot. Entries adjudicating Ms. Schottenstein as being in contempt have been journalized. Those entries are not automatically rendered moot or void by the granting of a final divorce to the parties. Since the entries currently journalized potentially could be enforced, the appeals are not moot.
Given the foregoing, both motions are denied.
The numerous assignments of error presented on behalf of both Ms. Schottenstein and the children can generally be grouped into general categories centering on certain specific issues. One of the key issues is a determination about what role the three daughters should play in the proceedings. The trial judge made both the decision about temporary allocation of parental rights and responsibilities for the care of the children, and the permanent allocation of parental rights and responsibilities in the final decree of divorce, both determinations made without personally interviewing any of the daughters. Instead, the trial judge viewed the conversation between a magistrate and the children as fulfilling the trial court's responsibility to consider the wishes and concerns of the children. Under the circumstances presented before us, we view the trial court's refusal to meet with the children as inconsistent with both the letter and the spirit of R.C. 3109.04 and the rules of civil procedure.
R.C. 3109.04(B)(1) and (2) read:
(B)(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.
(2) If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:
(a) The court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child.
(b) The court first shall determine the reasoning ability of the child. If the court determines that the child does not have sufficient reasoning ability to express the child's wishes and concern with respect to the allocation of parental rights and responsibilities for the care of the child, it shall not determine the child's wishes and concerns with respect to the allocation. If the court determines that the child has sufficient reasoning ability to express the child's wishes or concerns with respect to the allocation, it then shall determine whether, because of special circumstances, it would not be in the best interest of the child to determine the child's wishes and concerns with respect to the allocation. If the court determines that, because of special circumstances, it would not be in the best interest of the child to determine the child's wishes and concerns with respect to the allocation, it shall not determine the child's wishes and concerns with respect to the allocation and shall enter its written findings of fact and opinion in the journal. If the court determines that it would be in the best interests of the child to determine the child's wishes and concerns with respect to the allocation, it shall proceed to make that determination.
(c) The interview shall be conducted in chambers, and no person other than the child, the child's attorney, the judge, any necessary court personnel, and, in the judge's discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview. [Emphasis added.]
The mandatory nature of an interview process is well-established. See Badgett v. Badgett (1997), 120 Ohio App.3d 448, 450 ("plain language" of statute "absolutely mandates the trial judge" to interview child[ren]); Leasure v. Leasure (Mar. 12, 1998), Cuyahoga App. No. 72415, unreported; Riggle v. Riggle (Sept. 26, 2001), Wayne App. No. 01CA0012, unreported.
Applying the guidelines set forth in the statute, the record before us does not suggest that any of the three daughters, who are now fifteen, fourteen and twelve, respectively, are lacking in reasoning ability or communication skills. The record also does not indicate that the best interests of the children are served by having the trial court refuse to determine their wishes and concerns. We affirmatively draw the distinction between determining the wishes/concerns of the children and following the wishes/concerns of the children in making the allocation of parental rights and responsibilities in the divorce decree.
R.C. 3109.04(B)(2)(c) clearly contemplates that the trial judge shall meet with the children individually in chambers.
Some trial courts have delegated the responsibility to interview the minor children to magistrates as part of the trial process. See Civ.R. 75(C) and Civ.R. 53. In the case of the Schottenstein children, two different magistrates interviewed the children at different stages of the proceedings. The first interview occurred in December of 1998 in conjunction with a modification of temporary orders. The second interview occurred in early June of 1999 as part of the decision-making process with respect to allocation of parental rights and responsibilities for the final decree of divorce.
The magistrate who conducted the second interview rendered a magistrate's decision on September 2, 1999. Objections to this magistrate's decision were filed both on behalf of Ms. Schottenstein and on behalf of the children who had been made parties to the divorce case. Both the children and Ms. Schottenstein requested the trial judge to conduct his own interview of the children to hear for himself their desires and to consider those desires as opposed to adopting the findings of the magistrate which named the father of the children the residential parent and limited the time the children had with their mother to alternate weekends, one weekday evening, alternate holidays and alternate weeks during summer break from school.
While the objections to this magistrate's decision were pending, the parties were having a great deal of difficulty getting the girls to follow the court order. This led to Mr. Schottenstein filing contempt charges against his wife on February 23, 2000 for one of several such filings.
Despite all this turmoil and changing circumstances involving the Schottenstein children, the trial judge refused to take additional evidence from the girls or to conduct an interview with them himself. Instead, on March 16, 2000, the trial judge adopted most of the magistrate's decision with respect to allocation of parental rights and responsibilities, but further restricted the time the girls spent with the parent who they preferred to be the residential parent. The trial judge removed the weekly mid-week time with the mother, leaving the girls with alternate weekends, alternate holidays and alternate weeks during the summer as the allowed time with their mother.
We view the trial court's handling of this issue as error. We acknowledge the practical necessity of the delegation of such matter to the magistrates. However, the trial court must place itself in a position to make a full, independent review of the magistrate's decision. Further, the trial judge must comply with Civ.R. 53 in its handling of matters delegated to magistrates.
Civ.R. 53 (E)(4) reads:
(4) Court's action on magistrate's decision
(a) When effective. The magistrate's decision shall be effective when adopted by the court. The court may adopt the magistrate's decision if no written objections are filed unless it determines that there is an error of law or other defect on the face of the magistrate's decision.
(b) Disposition of objections. The court shall rule on any objections. The court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter. The court may refuse to consider additional evidence proffered upon objections unless the objecting party demonstrates that with reasonable diligence the party could not have produced that evidence for the magistrate's consideration.
(c) Permanent and interim orders. The court may adopt a magistrate's decision and enter judgment without waiting for timely objections by the parties, but the filing of timely written objections shall operate as an automatic stay of execution of that judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered. The court may make an interim order on the basis of the magistrate's decision without waiting for or ruling on timely objections by the parties where immediate relief is justified. An interim order shall not be subject to the automatic stay caused by the filing of timely objections. An interim order shall not extend more than twenty-eight days from the date of its entry unless, within that time and for good cause shown, the court extends the interim order for an additional twenty-eight days. [Emphasis sic.]
Civ.R. 53(E)(4)(b) allows a trial court to refuse consideration of additional evidence when a party could have presented the information before the magistrate, but did not. In the situation involving the Schottenstein girls, several new facts developed between the close of the hearing before the magistrate and the trial judge's adopting of the magistrate's decision. The trial court acknowledged that change had occurred by changing the allocation of time at the time the magistrate's decision was adopted.
Further, over nine months had passed since the interview of the children before the magistrate. The trial court was not in a position to evaluate for himself the impact of the intervening events on the desires and concerns of the children. Where the trial court is on notice of potentially significant changes in the circumstances involving the children, the trial judge should accept additional evidence and in many cases should conduct his or her own interview of the children as contemplated by R.C. 3109.04.
This interview by the trial judge is also consistent with the trial court's obligation to do a full, independent review of the matter referred to the magistrate. Transcripts do not convey the full impact that a personal contact with a child may communicate. A transcript does not always reflect a child's tears, frowns, smile or other aspects of demeanor. Further, a personal interview communicates to the child that the child's thoughts and feelings are important to the judge who make the final decision about so much of the child's life—where the child lives, where the child goes to school and how much time the child spends with the nonresidential parent.
In our first opportunity to address issues regarding this divorce, we clearly addressed the need for carefully considering the thoughts and concerns the three children of this marriage. In December 2000, we wrote:
The three daughters had earlier expressed their strong desires to live with their mother when the court was considering the allocation of parental rights and responsibilities for purposes of the final decree of divorce. However, the final decree of divorce had not been issued or journalized at the time the trial court was presented with this contempt. The parties had been operating under the modified temporary order which named the father, Steven Schottenstein, the residential parent and were still doing so as of the time this case was argued before this appellate court almost two years after the modified temporary order was journalized. The three young women could justifiably have felt that their opinions counted for nothing, or at least had been given little weight up to that point in time.
Divorces are difficult times for children, whether young or adolescent. The children have little or no control over what is happening in their worlds. They have little or no control over what is happening between their parents. They have little or no control over basic aspects of their everyday lives, such as where they live or go to school.
Divorces also can lead to dramatic changes in the standard of living for the children, again leaving the children helpless to avoid the reduced standard of living that comes. At worst, the children blame themselves for the bad things happening to them and around them. A small child may feel that they are bad or bad things would not be happening to them. A more mature child may still harbor such a small child inside.
By the time a "child" reaches age fourteen, that "child" may be fully grown and physically mature. Parents simply cannot use the same means to control a fourteen-year-old that can be used with a preschooler. The fourteen-year-old has to at least comprehend the will of the parents if cooperation is to be expected. In the context of the Schottenstein case, the trial court should have at least interviewed the fourteen-year-old in order to ascertain her view as to what was happening in her world and why she felt she did not want to walk a short distance from her school to her father's new home to visit him or spend time with him.
The maturity of the children who were eleven and twelve at the time of the contempt proceedings is less clear. However, their need to feel that they had some control of their world could have been even greater. They had also expressed their desires to live with their mother and to be free of a schedule that moved them from house to house each week.
The trial court also should have considered taking the time to explain its ruling on the contempt to the three young women/girls. Although the guardian ad litem could normally fulfill this role, the guardian ad litem in the contempt hearing conducted himself in many ways as if he were a second attorney for the girls' father, cross-examining the mother in very hostile fashion at times.
The trial court ultimately entered a new order which threatened the mother of the girls with incarceration for twenty days and which threatened separating the girls from their mother for six weeks. A failure to explain this order could leave the young women with the impression that their attempts to express themselves had caused their mother to be jailed and them to be under the complete control and supervision of the parent they were trying to avoid. Under the circumstances, the trial court should have met with the girls, both to hear their views and then to explain later why their views did or did not have an impact on his ruling.
We no longer live in a time when children are mere chattels, with no rights and no inherent merit. We no longer live in a time when maxims such as "spare the rod and spoil the child" are generally accepted. Instead, a parent who uses a rod is at real risk of child abuse charges and/or loss of custody through juvenile court proceedings. For court orders to be effective, children the age of the Schottenstein girls have to at least accept the validity of the court's order. The trial court did not do enough to ensure acceptance and respect for its decision here.
Scottenstein v. Schottenstein (Dec. 12, 2000), Franklin App. No. 00AP-285, unreported.
The current version of R.C. 3109.04 is a successor statute to the former "election" statute (former R.C. 3109.04[A]), which allowed a child "*** twelve years of age or older *** to choose *** the parent with whom the child is to live," unless, inter alia, the court found the selected parent "unfit." Bawidamann v. Bawidamann (1989), 63 Ohio App.3d 691, 695. Had the former statute, amended only in the very recent past, still been in effect, all three of the Schottentstein daughters most assuredly would have elected to reside with their mother, who had provided, clearly by far, the much larger part of their care their entire lives.
The enactment of the current R.C. 3109.04 procedures for ascertaining the desires and concerns of minor children was not intended to completely eviscerate the intention of its predecessor election statute. A reading of the current statute in its entirety reveals no such intention to effect a complete reversal of the earlier law regarding election by minor children. Instead, we view the current statute as an expansion of the power of minor children to have their concerns considered before their eleventh and twelfth birthdays.
As a result, as summarized below, we sustain the assignments of error challenging the trial court's refusal to meet individually with the three daughters and to take additional evidence before deciding who should be named residential parent in the final decree of divorce.
The reticence of the trial court to personally hearing evidence from the Schottenstein daughters also impacted the various contempt proceedings. The trial court's reticence may be attributed, at least in part, to an inaccurate understanding of a legal principle. For many years, courts have recognized that minor children have the ability to thwart court orders about where the children will spend their time. The early case law developed at a time when statutes and judgments referred to custody of children and custodial parents. Now, however, the statutes refer to allocation of the children's time, residential parents and nonresidential parents. However, the ability of "children," especially of adolescents and teenaged young women or men, to thwart court orders has not changed with the mere change of statutory language.
The trial judge in this case acknowledged the case law which holds that a party would not be found in contempt where the children made an independent decision not to go on visitation with a noncustodial parent. However, the trial court nonetheless determined that such case law applies only to situations where children refuse to follow a court order to spend time with a nonresidential parent, not to cases where children refused to return to the home of the residential parent. The trial court erred in this determination.
In a statutory scheme which focuses on allocating a child's time, the same defenses are available to contempt alleged by a residential parent as by a nonresidential parent. If the child or children of the parties thwarts the court order allocating parental rights and responsibilities, it does not matter whether the order is for time with a residential parent or for time with a nonresidential parent.
Apparently because of its error of law, the trial court repeatedly refused to hear testimony from the daughters about why they were unwilling at times to return to their father's home. On the isolated occasion when the trial court allowed two of the daughters to testify, the trial court improperly minimized the scope of the testimony. Because of this error, all of the contempt proceedings before us were affected and the judgments of contempt for violations of the order with respect to the time to be spent with their father must be reversed.
Thus, as delineated below, the assignments of error relative to the contempt proceedings are sustained.
Another broad area of concern in this case is the division of marital property. We find no abuse of discretion or error of law with respect to the division of marital property. The primary issue regarding division of property dealt with a possible division of stock in M/I Homes which appreciated over $10 million in value during the term of the marriage. The trial court adequately and accurately set forth its analysis of the issue and its rationale underlying its determination why this stock was not marital property. As we concur with the trial court's rulings as to these issues, we do not feel compelled to restate the same analysis here.
A related area of concern arising in this case is the award of spousal support. Again, the trial court exercised reasonable discretion in its awards. We need not reiterate the trial court's well-reasoned analysis.
The remaining assignments of error with respect to the Schottenstein children are rendered moot by our ruling with respect to the failure of the trial court to fully consider the decision and concerns of the Schottenstein children.
Apparently several changes have occurred which will require the trial court's consideration on remand. Various filings indicate that Mr. Schottenstein remarried shortly after the final decree was journalized. The presence of a stepmother is a significant change which will require consideration. The interaction of Mr. Schottenstein with his daughters, individually and collectively, since the divorce was journalized may impact the trial court's view of what will best serve the interests of one or more of the children. Other significant occurrences unknown to this appellate court could also impact the trial court's decision. As we disdain the concept of a "vain act" in our attempt to rectify error (see, e.g., Scassa v. Scassa [July 7, 1998], Carroll App. No. 688, unreported), we are not willing to assume that the trial court will simply "go through the motions" of complying with our order of remand, while intending to reinstate its previous order. If the trial court cannot evince an open mind in addressing the merits of the conflicting positions on allocation of parental rights and responsibilities, including consideration of the summarily-dismissed, "irrelevant" opinions of the children, then the trial court certainly has the option of recusing itself from further involvement in the case.
Certain of the assignments of error have been rendered moot by our rulings above. Because all the contempt findings which are before us are now vacated, the trial court does not have the ability to treat Ms. Schottenstein as a person who has been found guilty of contempt repeatedly. The guardian ad litem has been removed and will not automatically be reinstated. The advisability of a restriction on either parent removing one or more of the children from central Ohio will need to be revisited, based upon subsequent events.
We are not in a position to state what a trial judge will rely upon in making a new order regarding the allocation of parental rights and responsibilities. Indeed, we are not in a position to know what judge will make subsequent rulings on this case. Thus, all assignments of error regarding weighing the expert testimony are rendered moot by our foregoing rulings.
In summarizing the disposition of these consolidated appeals, as indicated infra, the motions filed by both Ms. Schottenstein and Mr. Schottenstein are denied.
To the extent practicable, particularly in light of "overlapping" assignments of error and interrelated issues, we summarize the disposition of the appeals as follows:
Case Nos. 00AP-1088, 00AP-1284, 01AP-94, and 01AP-227, all arise from the contempt proceedings. Accordingly, to the extent indicated in this opinion, the assignments of error which challenge the trial court's contempt findings are sustained. In particular, we sustain the following: in case No. 00AP-1088, Ms. Schottenstein's second assignment of error and the children's identical second assignment of error; in case No. 00AP-1284, Ms. Schottenstein's first, second and third assignments of error; in case No. 01AP-94, the children's general assignment of error, exclusive of its "sub-issues," challenging the indirect criminal contempt finding; and, in case No. 01AP-227, the fourth and fifth assignments of error. As discussed above, the remaining assignments of error set forth in the contempt appeals are rendered moot.
The final two cases, Nos. 01AP-36 and 01AP-95, are the appeals resulting from the final divorce decree. In Ms. Schottenstein's appeal, No. 01AP-36, she sets forth three general assignments of error, with numerous lettered "subparts." We sustain the first assignment of error only to the extent it challenges the trial court's disposition of the parental rights and responsibilities related to the minor children, as discussed at length herein. The remaining second and third assignments of error related to the property distribution and spousal support are overruled.
Finally, in case No. 01AP-95, the minor children's appeal from the final decree, we similarly sustain the first assignment of error insofar as it challenges the trial court's disposition of issues related to the parental rights and responsibilities. The remaining assignments of error are overruled.
To the extent indicated herein, this case is affirmed in part and reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part and
reversed in part; cause remanded.
KENNEDY, J., concurs.
BOWMAN, J., concurs in part and dissents in part.
BOWMAN, J., concurring in part and dissenting in part.
Being unable to agree with the majority's conclusion that the trial court erred when it declined to meet independently with the three daughters, I respectfully dissent with respect to the majority's disposition of assignments of error related to the allocation of parental rights and responsibilities.
Civ.R. 53(C)(2) empowers a magistrate, pursuant to an order of reference by the court, to "regulate all proceedings in every hearing as if by the court." The civil rule expressly contemplates that a magistrate may subpoena and interview witnesses. Civ.R. 53(C)(2)(a) and (c). In the instant matter, the trial court referred to the magistrate the task of interviewing the children, as is frequently the case in matters involving allocation of parental rights and responsibilities.
Although it does not take issue with the trial court's reference of the interviews to the magistrate, the majority contends that the trial judge should have also interviewed the children because: (1) more than nine months had passed since the magistrate interviewed the children; and (2) there were "potentially significant changes" in the circumstances involving the children. Specifically, the majority noted that Mr. Schottenstein had remarried and his interaction with the children may have changed. I disagree with the majority that these facts mandated an independent review by the trial court. I would conclude that the trial court did not err when it declined to interview the children.
The majority's reasoning would undermine the use of a magistrate to interview children for purposes of making a recommendation as to parental rights and responsibilities. I find no reason in the majority opinion to distinguish this case from other cases with similar delay between the magistrate's interview and the trial court's decision. Furthermore, the new facts at issue in this case are not particularly unusual in the context of divorce, and I do not believe that the trial court was required to take additional evidence in order to rule on objections to the magistrate's decision. The majority opinion would appear to open the door for parties to argue that a trial court must conduct independent interviews whenever there is a delay in time between interviews by a magistrate and execution of judgment, or whenever a party perceives that one parent's relationship with a child has changed.
Similarly, I believe that the majority opinion provides inadequate guidance to trial courts regarding the circumstances under which judges would be required to conduct their own interviews. As to this matter, the majority instructs as follows: "Where the trial court is on notice of potentially significant changes in the circumstances involving the children, the trial judge should accept additional evidence and in many cases should conduct his or her own interview of the children as contemplated by R.C. 3109.04." I believe that this directive opens the door for needless confusion and uncertainty in the judicial process.
Nor do I agree with the majority that R.C. 3109.04(B)(2)(c) mandates that the trial judge, rather than a magistrate, must interview the children. The purpose of R.C. 3109.04(B)(2)(c), which limits those in attendance at the interview to "the child, the child's attorney, the judge, any necessary court personnel, and, in the judge's discretion, the attorney of each parent," is to protect the sensitive nature of the interview. "This section, which in effect insulates the child from any extraneous influences during the interview, suggests that the General Assembly intended to create a 'stress-free environment *** [so that] [c]hildren should display candor in setting forth their feelings' regarding custody." In re Longwell (Aug. 30, 1995), Lorain App. No. 94 CA 006006, unreported, quoting Patton v. Patton (Jan. 9, 1995), Licking App. No. 94 CA 40, unreported. R.C. 3109.04(B)(2)(c) does not, however, alter the fact that R.C. 3109.04(B) contemplates a function that the trial judge may delegate to a magistrate pursuant to Civ.R. 53(C)(2). Although the cases cited by the majority indicate that the interview process is mandatory upon request of either party, they do not address the trial court's authority, pursuant to Civ.R. 53, to appoint a magistrate for the purpose of conducting the interview. See Badgett v. Badgett (1997), 120 Ohio App.3d 448, 450; Leasure v. Leasure (Mar. 12, 1998), Cuyahoga App. No. 72415, unreported; Riggle v. Riggle (Sept. 26, 2001), Wayne App. No. 01CA0012, unreported. Moreover, to the extent any conflict exists between R.C. 3109.04(B)(2)(c) and Civ.R. 53(C)(2), the civil rule prevails. See Section 5(B), Article IV, the Ohio Constitution.
Because I would not require the trial judge to conduct independent interviews of the Schottenstein children, I would overrule the assignments of error relating to allocation of parental rights and responsibilities and affirm that portion of the judgment.
I also dissent regarding the majority's disposition of assignments of error related to findings of contempt against Mrs. Schottenstein, as I am unable to agree with the majority's conclusion that the trial court abused its discretion. The voluminous record includes ample credible testimony to support the trial court's finding of contempt. Even if the trial court erred in limiting the scope of testimony from the children, as the majority concludes, I would deem the error harmless. The trial court was aware that all of the children had expressed a desire to live with their mother. The trial court also heard from fourteen-year-old Sarah Schottenstein, who testified that it was her unilateral decision not to return to her father's home during the time at issue. Accordingly, I would overrule the assignments of error related to contempt proceedings against Mrs. Schottenstein and affirm that portion of the judgment.
I concur with the majority opinion with respect to the disposition of the assignments of error related to property distribution and spousal support issues.
Rootsweb - October 25, 2002
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Subj: ARE THE REPUBLICANS BUYING THE COURTS AND ELCETIONS IN OHIO?
Date: 10/21/2002 9:39:06 PM Pacific Daylight Time
Subj: ARE ALL THE SCHOTTENSTEIN'S GUILTY OF CORRUPTION AND ALL THE OHIO COURTS?
Date: 10/21/2002 12:09:31 PM Pacific Daylight Time
Subj: ARE ALL THE SCHOTTENSTEIN'S GUILTY OF CORRUPTION?
Date: 10/20/2002 12:55:19 AM Pacific Daylight Time
Jill Schotenstein...formerly of Columbus, Ohio...is a prime victim of a judicial system that recognizes and does the bidding of greed...not the law.
Jill was married to Steven Schottenstein...the scion of a family that is well-connected in Ohio poltics. Steven's father..uncles and cousins have been big contributors to the Ohio Republican Party and GOP officeholders for many years.
Their largesse also found its way to Ohio State Univerisity where the school's indoor sports arena is named "The Schottenstein Center."
All of these events have led to Jill's futile effort to win custody of her children from a judicial system that has money to lose if it follows Ohio's laws.
Franklin County Domestic Relations Court Judge James Mason is the lighting rod of Jill's troubles. He has been presiding over the custody battle. Because of his one-sided rulings, the Ohio Court of Appeals have overruled Mason on eight separate occasions.
Under Ohio Law, once a child reaches the age of 13, he or she can tell the court which parent they wish to live with. The Schottenstein children, three daughters, range in age from 13 through 16. Yet, Mason has steadfastly refused to ask where they want to live.
The girls have been with the mother for many years. In fact, Mason threw Jill in jail a while back because the children were with her.
Fortunately, the appeals court ordered her released.
In hearings, Mason has permitted lies and false evidence, submitted by Steven's attorneys, to be entered into the record.
The appeals court's most recent reversal of a Mason ruling told him to seriously consider Ohio's laws and "not go through the motions" of following state statute.
Shortly after this event, Jill asked the Ohio Supreme Court to remove Mason from the case...after all, eight reversals does tend to question the wisdom of any sitting jurist.
It was here that Ohio Supreme Court Chief Justice Thomas Moyer, himself the recipient of tens of thousands of dollars in campaign contributions from the Schottenstein family, rule sua sponte..that Mason was not prejudiced.
Guardians have been appointed to represent the interests of the three girls. However, at least one of these guardians worked in the Schottenstein family law firm and sided with "cousin Steve's" lawyer.
Currently, the guardian appointed to the case, has informed Jill that Mason has already decided what he will do. The case doesn't come up for trial until later this month.
There are countless other horror stories that clearly show Jill has never had the chance for a fair trial and her daughters...whose legal rights dictate they tell the court where they want to reside...will never be asked by Mason where they want to live.
At stake is about $13 million in back child support.
The Schottensteins have the money, yet the courts have ruled any money is locked in a trust that can never be tapped. However, in recent months, the Schottenstein family has been raiding the trust and has been dumping stock so as to make it appear the cupboard is bare.
This is a story that cries out to be told.
The Supreme Court of Ohio
February 12, 2003
Title: Case No. 02-0050, Jill D. Schottenstein v. Steven Schottenstein
Start Date: 2/12/2003
Start Time: 10:00 am
End Date: 2/12/2003
End Time: 10:30 am
Location: 3rd Floor, Courtroom
Department: All Departments
Event Type: Oral Arguments
Contact Person: Clerk's Office
View List of All Events for 2/12/2003
Is Judge James Mason Biased?
By The Watchdog
The Watchdog - April, 2004, Page 4
Each State Supreme Court has a Code of Judicial Conduct that states: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.
In '98 Judge James Mason of Columbus, Ohio was assigned to the Jill Schottenstein v. Steven Schottenstein divorce case. During the pendancy of this tortured case, Mason's absurd rulings against Jill were overturned seven (7) times by the Court of Appeals.
During the pendancy of this tortured case, Mason's absurd rulings against Jill were overturned seven (7) times by the Court of Appeals.
In November '00, Jill's attorney Harold Kemp filed an affidavit of bias with the Supreme Court seeking Mason's removal. Kemp and Jill testified that Mason was biased against Jill and should be removed; however, the Supreme Court refused to remove Mason.
Several days before his attempt at reelection in Nov. '00, Jill protested in front of the courthouse by carrying a large sign seeking Mason's defeat and by handing out flyers asking voters to vote for his opponent. Two days after his reelection, Mason found Jill guilty of contempt and sentenced her to 45 days in jail. This outrageous example of judicial bias was then reversed by the Court of Appeals, which spanked Mason by stating the following:
"As we disdain the concept of a 'vain act' in our attempt to rectify error, we are not willing to assume that the trial court will simply 'go through the motions' of complying with our order of remand, while intending to reinstate its previous order. If the trial court cannot evince an open mind in addressing the merits of the conflicting positions on allocation of parental rights and responsibilities, including consideration of the summarily-dismissed, opinions of the children, then the trial court certainly has the option of recusing itself from further involvement in the case."
Despite the Court's strong language Mason refused to disqualify himself. When appellate courts repeatedly reverse rulings adverse to the same party, there can be no question that the trial
Any fair-minded person would question Mason's motives in refusing to remove himself. Why would a judge fight to stay on a case when it's obvious he has a bias against Jill? The only reason is that the judge has an agenda, which is to get even with the party that exposed his biased behavior and/or to continue to advocate for the other party. Either way, justice is perverted when a judge like Mason remains on a case when the evidence of bias is as overwhelming as it is in this case.
Teen's Suit: Rich Man A Poor Dad
BY ROBERT GEARTY and TRACY CONNOR
New York Daily News - Thursday, July 29th 2004, 6:57AM
A MANHATTAN teen's feud with her millionaire dad is now a federal case, replete with accusations of physical abuse and mental torture.
Sarah Schottenstein, 18, who already was suing construction magnate Steven Schottenstein for child support, slapped him with new charges in Manhattan Federal Court yesterday.
She claims he forced her into a boot camp and a mental hospital, eavesdropped on her phone calls, barged into her bathroom and slept in her bedroom.
"I'm not insinuating that I was sexually molested," the teen told the Daily News. "I just don't think that's normal."
The father, who runs an Ohio-based home-building company, and his lawyer could not reached for comment on his daughter's allegations.
Steven Schottenstein, 47, was awarded custody of Sarah and her two younger sisters after their mother divorced him and moved to Manhattan.
The suit, which names the other two girls as plaintiffs, charges that Schottenstein used his daughter as a pawn in his "war" against his ex-wife and subjected her to "abuse, domination, control, paranoia, disregard of boundaries, invasions of privacy and deprivation of liberty."
He belittled her poor health - later diagnosed as lupus - as hypochondria and "physically hurt Sarah from time to time," the suit claims.
In 2001, he took her on his corporate jet to a Connecticut boarding school against her will, and later dumped her at Cross Creek Manor, a Utah lockdown facility for bad teens, she charged.
She wound up in a Kansas psychiatric ward, sharing a room with a cocaine addict, until her mother rescued her, the suit said. "There was no reason for me to go," said the teen, who now lives with her mother. "I'm not delinquent. I'm not suicidal."
The suit does not specify the damages being sought, but the teen recently sued her father in Manhattan Family Court for child support.
In that case, she charged that he's refusing to pay for her college tuition because she left him to live with her email@example.com
Family Court, New York County
August 22, 2006
Family Court, New York County
In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Jill Schottenstein, Petitioner,
Steven Schottenstein, Respondent.
Barry L. Goldstein, Esq., Counsel for Petitioner
Baker & Hostetler LLP, Counsel for Respondent
George L. Jurow, J.
This child support proceeding is a further example of a serious legal issue that has [*2]plagued courts on a nation-wide basis since the adoption of the Uniform Interstate Family Support Act (Article 5-B of New York's Family Court Act)("UIFSA"): Whether, under UIFSA, a parent and child who move from a state where the existing child support obligation terminated when the child turned 18, to a state that provides for support until the child is 21, may obtain a de novo child support order in the new jurisdiction. Before the Court is an objection filed by the petitioner mother to an order entered by Support Magistrate Nicholas Palos, dismissing her support petition for lack of subject matter jurisdiction. Petitioner commenced the support proceeding seeking an order from the Support Magistrate directing the respondent father to provide support for the parties' eighteen year old daughter. The respondent father challenged the jurisdiction of the Court (Magistrate) to enter such an order on the grounds that there is an existing child support order from the state of Ohio [FN1] and that pursuant to UIFSA and the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. §1738B ("FFCCSOA"), Ohio has continuing exclusive jurisdiction in this case and New York, accordingly, lacks jurisdiction to modify the Ohio order. Upon careful consideration of the proceedings before the Support Magistrate herein, and the applicable law, this Court finds, for the reasons discussed below, that the petitioner's objection has merit and that the Support Magistrate erred in finding that this Court lacks subject matter jurisdiction to entertain the mother's application for child support. The history and purpose of UIFSA is clear and has been generally understood to create a "one-order" system of child support orders to replace the prior system which allowed for the same parties and child to be subject to multiple child support orders from different states. UIFSA establishes a procedure to determine which order should control and which court should have "continuing exclusive jurisdiction." FCA §§580-205(d), 207. Where a court has continuing exclusive jurisdiction, another state's court lacks jurisdiction to modify that court's order. The
Support Magistrate agreed with the respondent's argument that the plain language of UIFSA and FFCCSOA establishes that Ohio has continuing exclusive jurisdiction in this case and that New York is thus precluded from modifying the duration of the Ohio order. See Schottenstein v. Schottenstein, NYLJ, 6-2-05, p.18, col.3. While this Court agrees with the Support Magistrate's views regarding the purpose and spirit of UIFSA and FFCCSOA, and finds that it is reasonable to interpret these statutes as intending that the original order should control the duration of the child support order in all
situations, New York case law has consistently allowed for a different statutory interpretation
and application. In Ferraro v. Nash, 293 AD2d 538, 739 N.Y.S.2d 838(2d Dept. 2002), the
Appellate Division determined that New York had jurisdiction to issue a new child support order
on behalf of a child who was less than 21 years of age after the original Florida child support
[*3]order had expired. The Appellate Division's decision recited scant facts but cited two cases
both as well involving parties seeking child support orders in New York for children between the
ages of 18 and 21 after the expiration of the original State's support orders. Those courts clearly
held that a New York child support order made after the expiration of another State's order does
not serve to modify the duration of that State's order, but rather, is a de novo order. Goodison v.
Goodison, 184 Misc 2d 573, 709 N.Y.S.2d 376 (Fam. Ct. Broome County, 2000); Hauger v.
Hauger, 256 AD2d 1076, 683 N.Y.S. 2d 771 (4th Dept. 1998).
All these cases, arguably, do not further the "one-order" policy of UIFSA but, to the extent
that they conflict with UIFSA's intent, they may do so for two reasons: (1) to serve the important
policy of New York State that children are entitled to be supported by both parents until the age
of twenty-one, See Family Court Act §413[a]; and (2) the language of UIFSA, as adopted by
New York State, does not specifically act as a bar to the entry of successive child support orders.
See Family Court Act §580-611.
This conflict between the New York case law and the statutory intent of UIFSA—has, in fact, been recognized by the drafters of UIFSA. Comments regarding a proposed amendment to section 611 of UIFSA (which has not been adopted in New York) state:
From its original promulgation UIFSA determined that the duration of child-support obligation [sic] should be fixed by the controlling order....If the language was insufficiently specific before the 2001 [sic], the amendments should make this decision absolutely clear....Some courts have sought to subvert this policy by holding that completion of the obligation to support a child through age 18 established by the now-completed controlling order does not preclude the imposition of a new obligation thereafter to support the child through age 21.... [Proposed] Subsection (d) is designed to eliminate these attempts to create multiple, albeit successive, support obligations.
Whether it is "subversion" or a well-intentioned desire to have children in New York supported until age 21, it appears [*4]that, currently, the law in New York would require a finding that this Court has subject-matter jurisdiction in this case. Until other appellate courts, or the Court of Appeals, or the legislature of this State revisits this issue, and compels a different result, this Court is bound by an applicable appellate interpretation of the statute as determined in Nash. See Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 476 N.Y.S.2d 918 (2nd Dept.1984).
It is true, as noted by the Support Magistrate, that Nash did not contain much factual background, for example, whether the subject child's length of residence in New York is a critical variable in the court's analysis. [FN3] Although Goodison suggests that the child's contacts
with New York may be of significance, that case emphasized as paramount the policy of New York to support children to age 21. The Support Magistrate's attempt to dismiss Nash (which was not a fact-based decision)as wrongly decided or at least analytically flawed ("...blindly applying [precedents]...no explanation for why the statute itself was ignored..."), and Goodison as well, is, ultimately, unpersuasive. Whether are not these cases are incorrect, or imperfect, is not the issue. Nash, which also refers back to Goodison, is controlling precedent. And, again, the clarifying amendments, whose purpose the Support Magistrate obviously strongly supports, have not been enacted in New York. The apparent disconnect between the intent of UIFSA and the existing New York case law requires further debate. The legislature is, respectfully, encouraged to review this issue. But this Court, at the trial level, can not act unilaterally to resolve the issue. Cf. Sheetz v.Sheetz, 840 AD2d 1000, PA Super. 512 (Superior Ct. Of Penn. 2003).
To be clear, this court's decision is strictly limited to the issue of subject matter jurisdiction. Its does not address, for example, any issues of personal jurisdiction nor the ultimate merits, if any, of any potential support order. Therefore, for the reasons stated above, this Court finds that the Support Magistrate erred in dismissing the petition herein for lack of subject matter jurisdiction and grants the petitioner's objection. The matter is hereby remanded to the Support Magistrate for further proceedings. So ordered. Notify parties.
E N T E R : [*5]
George L. Jurow
Judge of the Family Court [*6]
Footnote 1:The Court accepts, for the purposes of this decision, that there is an Ohio child support order. This Order was entered on January 29, 2004 by the Court of Common Pleas, Franklin County, Ohio, Division of Domestic Relations. Although the order only required the respondent to provide medical insurance for the minor children, this qualifies as a "child support order" under the FFCCSOA, 28 U.S.C. §1738B (b) and UIFSA, FCA §580-101 (21). Footnote 2:Drafting Committee for Amendments to the Uniform Interstate Family Support Act, December 2001.
Footnote 3:The child at issue here, while currently a New York resident, was born and raised in Ohio and the subject of lengthy litigation in the Ohio courts.
M/I Schottenstein Homes (MHO)
Yahoo Message Board - September 7, 2007 (04:25 pm)
ISN'T 601RS TIED TO THE 650,000 BANK LOAN WITH YOUR 19 BANKS?
Footnote 1:The Court accepts, for the purposes of this decision, that there is an Ohio child support order. This Order was entered on January 29, 2004 by the Court of Common Pleas, Franklin County, Ohio, Division of Domestic Relations. Although the order only required the respondent to provide medical insurance for the minor children, this qualifies as a "child support order" under the FFCCSOA, 28 U.S.C. 1738B (b) and UIFSA, FCA 580-101 (21)."
CASE # 98DR-01-347
CHILD SUPPORT WORKSHEET FILED MARCH 20 1998 AT 3:40 P.M. (35403H12)
THIS WORKSHEET WAS NEVER SIGNED BY BARRY WOLINETZ OR STEVEN SCHOTTENSTEIN YET SUBMITTED THROUGH THE FEDERAL CHILD SUPPORT AGENCY WITHOUT PROSECUTION.
DAVID SMITH & ATTORNEY GENERAL PETRO BOTH INSIST THERE IS NO ORDER OF CHILD SUPPORT IN EXISTANCE IN OHIO.
SEE PAGE 12 # 19. Marginal out of pocket costs, necessary to provide for health insurance for the children who are the subject of this order. 00000000000000000000000000000
SEE PATE 12 # 20 TOTAL CHILD CARE AND MEDICAL EXSPENSES (ADD 18 & 19 COLUMN 1 AND 2) 00000000000000000000000000000000000
IS THIS A CRIME?
FEDERAL FORM # 3113.215 O.R.C.
SEE PATE 12 # 20 TOTAL CHILD CARE AND MEDICAL EXSPENSES (ADD 18 & 19 COLUMN 1 AND 2) 00000000000000000000000000000000000
IS THIS A CRIME?
FEDERAL FORM # 3113.215 O.R.C.
Yahoo Message Boards - September 24, 2007 (03:03 am)
Sarah's sworn testimony on November 16, 2005, included the following:
"I left Ohio because I couldn't bear another day living there. I was afraid to stay. Before I left my father said he was going to hurt me. He said actually- I know we're here today for child support but he told me he'll never pay child support and he told me he never wanted me to see my mother again and he wanted her locked up in jail." (A. 243 lines 17-23)
"I was afraid for my health. Every single doctor there he would stop treatment and I knew I was still having symptoms and I expected if I relocated I would be healthier." (A. 243 lines 23, 24, 25), (A. 244 lines 1, 2)
"In 2001 my father . . . locked me up. He sent me to a delinquent camp and psych ward where in the delinquency camp they ship people off to Mexico and the people are in handcuffs and if I was sent there I'm sure no one would have ever found me." (A. 253 lines 16-24)
"Before that people in my high school were filling out letters of recommendation. I won a citizenship award in seventh grade; I have no place to be in a delinquency camp or locked up." (A. 254 lines 2-6)
"Threats to hurt me, threats to lock up my mom, threats to hurt my mom. I mean even something in a completely different sense, saying that I wouldn't graduate, threats to my academic abilities I mean even that's something really important to me." (A. 254 lines 21-25)
"When I was fifteen and before my father sent me away he started shaking and grabbing my shoulders and at the point I ran to the front door and he grabbed and started twisting my arm and I didn't understand what was going on." "I just remember saying to myself is he gonna break my arm, what is he doing this for ..." (A. 256 lines 4-10)
"Immediately when I got here (New York), I was enrolled in a high school and I graduated. I graduated with honors and since then I have been college and excelling academically as well."(A. 256- 257)
"I was having symptoms. I was having gastrointestinal problems, joint pain and I wasn't- I was having trouble walking far distances." "At one point, I mean, my health was still interfering with my academics." (A. 251 lines 21-25)
"Actually, yes. Now, I mean, Now living in New York City, I'm walking far distances. Sometimes actually I walk faster than my own mom." "I recently just made the Dean's list in college and I'm heavily participating in school." (A. 252 lines 4-8)
"He was always screaming at me and yelling. I didn't feel safe with him and he never- I felt like he wasn't treating me like a daughter, but I felt I wasn't being treated like a person. He had guards at the door..." (253 lines 2-6)
"You mentioned that Dr. Silberg had evaluated your entire family. Was there any other doctors that ever did that?"
"I don't believe so." (A. 261 lines 11-14)
Jill Schottenstein V Steven Schottenstein in the First Appellate Court
Child support filed March of 2004 and still pending....
George Bundy Smith advocating AGAINST THE CHARTER OF JUDGE KAYE REPRESENTING STEVEN SCHOTTENSTEIN
Click here: Court Improvement Project - Home Page
"The Child Welfare Court Improvement Project ('CIP') is a federally-funded initiative that supports the Family Court's mandate to promote the safety, permanence and well-being of abused and neglected children.
WHAT PART DID JAY & HIS FAMILY HAVE IN THIS DOMESTIC VIOLENCE AND PARENTAL CHILD ABDUCTION SITUATION? IS THIS A FELONY?
WHY WAS ABIGAIL SILENT IN HER POSITION AS CHAIR FOR DOMESTIC VIOLENCE?
Postion Vice Chairman of the Board, Chief Operating Officer, Assistant Secretary
Start year 1990
Salary & Bonuses(not including Stock Options) $2,012,746
Exercised Stock Options Count 25,000
Exercised Stock Options Value $615,805
Vested Stock Options Count 29,000
Vested Stock Options Value $517,225
Nonvested Stock Options Count 75,000
Nonvested Stock Options Value $1,092,690
Company M/I Homes, Inc
Stock Symbol MHO
* $ Total Salary includes salary and bonus but does not include stock options
Stockholders of JP - Waht Would You Do With This Partner?
AOL Message Boards - October 16, 2007
Chadbourne & Parks LLP (New Partner) (George Bundy Smith)
This supports Chadbournes original statements in the memorandum in support of defendants M/I Homes, Incs motion to dismiss.(exhibit I ) There can be no doubt as to the intent: Steve Schottenstein; (S----). did not consent in fact she filed a Federal constitutional case(exhibit J) against her father and his company M/I Homes because her uncle Robert Schottenstein is the trustee of the aircraft 601RS which made him a party to the felony.
According to Chadbournes own case law their now client Steven Schottenstein is guilty of kidnapping and his brother Robert as trustee of the aircraft 601RS that belongs to the bank loans of M/I Homes is now a party to this crime.
Defendants attorney George Bundy Smith(exhibit H) signed a reply brief on August 6, 2007 stating he swore under penalty of perjury all statements were true. "He knew there was no support order. He also knew as a partner at Chadbourne & Parks LLP, that his associates Jennifer P. Wilson and Thomas E. Riley, had entered a Memorandum in support of defendant M/I Homes Incs motion to dismiss on August 23, 2004(exhibit I)"
In this memorandum is stated Mr. Schottensteins purported confinement: of Plaintiff was solely to cause both mother and daughter anxiety over plaintiffs disappearance in furtherance of a litigation tactic to punish plaintiff mother for leaving Mr. Schottenstein and challenging him in court. Plaintiffs so-called confinement was not related to any conduct by or on behalf of M/I Homes, but to conduct her father allegedly undertook soley for personal reasons. Under both New York and Ohio law a plaintiff asserting a common-law claim for false imprisonment must establish that the defendant intended to confine the plaintiff that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged. Martinez v City of Schenectady, 97 N.Y. 2d 7B, 85, 735 N.Y.S.2d 868 (2001); Fryverson v Ohio Dept. of Rehab. And Corr. 120 Ohio Mics. 2d 50, 52 778 N.E. 2d 153, 155 (Ohio Ct. Cl.2002) The offense of false imprisonment occurs when a defendant acts to confine one intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short affd No. 02AP-1216. 2003 WL 21234932 (Ohio App. 2003)
What exactly is Chadbourne & Parks LLP and "Partner" George Bundy Smith trying to do? Circumvent the entire legal system to prove the Indepence of the Legal system is on hold until "Judges get a raise," or is this the current practice? This totally dismisses the premise of the Kaye Commision Report and Guidelines, the time and efforts of the Public, & Legal practioners, the Federal and State funding all at the expense of the children it was designed to protect and support.
(NOTICE OF MOTION FOR REARGUMENT & TO APPEAL TO THE COURT OF APPEALS SCHOTTENSTEIN V SCHOTTENSTEIN)
Columbus Jewish leader dead at 75
Akron Jewish News - March, 2004
Irving Schottenstein, a former president of the Jewish federation of Columbus, Ohio, died at 75. Schottenstein, who died Feb. 11, also served as president of the Columbus Jewish Foundation from 1984 to 1991, the longest-serving president in the foundation's history. He also was a co-founder of M/I Homes, one of largest home builders in the United States.
M/I Sschottenstein Homes, Inc. Names New president and Announces Senior Management Changes.
PR Newswire - May 8, 1996
COLUMBUS, Ohio, May 8 /PRNewswire/ -- M/I Schottenstein Homes, Inc. (NYSE: MHO) announces that certain key executive roles have changed effective immediately.
M/I Homes announced today that Robert H. Schottenstein has been named President and Steven Schottenstein has been named Senior Executive Vice President. Irving E. Schottenstein will continue to serve as Chairman of the Board and Chief Executive Officer. In addition, the Company has established an Office of the Chairman consisting of Irving E. Schottenstein, Robert H. Schottenstein and Steven Schottenstein. The Office of the Chairman will formulate and review key policy of the Company. The realignment of senior ..
Columbus Jewish Federation
More than 80 Years of Federation Leadership
The Federation, founded in 1926 has as its cornerstone the centuries old belief that social justice (Tzedakah) is a community responsibility. In practice, this means that each Jewish person has the duty to help other Jews - one responsible for the other - one family, one community, one people.
Today there are more than 500 volunteers and 4,000 contributors involved in The Federation, dedicated to strengthening our own community and establishing a secure and vital future for Jewish life worldwide. We are mindful of our past and thank the leadership listed, whose tireless efforts created a strong foundation rooted in our core Jewish values.
Federation Past Presidents
Edwin Schanfarber 1926-1944
Simon Lazarus 1944-1947
Samuel Summer 1947-1948
Robert Schiff 1948-1950
Ralph Lazarus 1950-1951
Richard Abel 1951-1953
Fred Yenkin 1953-1954
Troy Feibel 1954-1956
Samuel Shinbach 1956-1958
Herbert Levy 1958-1960
William Kahn 1960-1962
Herbert Schiff 1962-1964
Abe Yenkin 1964-1966
Edward Schlezinger 1965
Ben Goodman 1971
Norman Meizlish 1972-1974
Sidney Blatt 1974-1976
Ernest Stern 1977-1978
Myer Mellman 1978-1980
Bernard Yenkin 1980-1982
Millard Cummins 1982-1983
Jack Wallick 1983-1985
Miriam Yenkin 1985-1986
B. Lee Skilken 1987-1989
Benjamin Zox 1989-1993
Edwin Ellman 1993-1994
Irving Schottenstein 1995-1996
Ellen Siegel 1997-1998
Gordon Zacks 1999
Benjamin Zox 2000
Robert Schottenstein 2001-2003
Michael Canter 2004-2006
Steven Schottenstein 2006-2008
National Housing Endowment Gets $1 Million Grant from M/I Homes
HGTV Pro.com - May 22, 2006
Washington, Mar. 22, 2006—The National Housing Endowment, the philanthropic arm of the National Association of Home Builders, is pleased to announce a $1 million gift from The M/I Homes Foundation, a charitable organization funded by M/I Homes Inc. of Columbus, Ohio. The unrestricted gift primarily will support the Endowment's education initiatives.
"The important work of the National Housing Endowment could not be accomplished without the support and overwhelming generosity of donors like The M/I Homes Foundation," said Gary Garczynski, chairman of the National Housing Endowment and 2002 president of NAHB.
This year, the National Housing Endowment has embarked on a major grantmaking initiative to increase the number of qualified graduates entering the residential construction profession through the creation of H.E.L.P. (the Homebuilding Education Leadership Program). The Endowment will work with two- and four-year college and universities to:
Develop housing-related curricula with a specific concentration of study;
Increase the number of faculty with a residential construction background;
Increase graduate studies program with an emphasis on developing practical experience and mentoring opportunities in residential construction; and
Increase industry involvement in local and national student competitions.
"M/I Homes and The M/I Homes Foundation are proud to make this gift to the National Housing Endowment in honor of my late father, Irving Schottenstein," said Steven Schottenstein, chief executive officer and director of M/I Homes, Inc. "My father would be especially proud of this grant because his values are reflected in the Endowment's mission to support innovative and effective programs that further industry education, training and research."
The largest builder of single-family homes in central Ohio and one of the nation's largest home builders, M/I Homes, Inc. was founded in 1976 by cousins, the late Irving E. and Melvin L. Schottenstein. Since its inception, the company has sold more than 64,000 homes.
"The M/I Homes Foundation is a philanthropic leader in its community, in keeping with the Schottenstein family's tradition of giving," said Garczynski. "We are truly thankful for this gift from a longtime friend of the housing industry and a proud member of the NAHB Federation."
Steven Schottenstein will join the National Housing Endowment's Life Trustees; seven-figure donors whose leadership and commitment have enabled the National Housing Endowment to surpass its initial fundraising goal of $10 million set in 2002 and expand it to $25 million over the next three years. Thanks to this gift from The M/I Homes Foundation, the Endowment is quickly closing in on this current fundraising goal. In addition to the Life Trustees, the Endowment is led by a growing group of six-figure donors, known as Founding Advocates, who provide the Endowment's core support. Supporters and trustees represent all sectors of the housing industry, providing a unique perspective on its widespread needs and challenges.
M/I sends off longtime exec with plenty of thanks for years of service
Columbus Buisness First - August 4, 2006
Steven Schottenstein resigned as vice chairman and chief operating officer of M/I Homes Inc. in June after 27 years with the Columbus-based homebuilder.
The company is showing its gratitude with a $4.3 million severance package, a company car and other benefits.
So how does a company come up with a figure like that? Philip Creek, M/I's chief financial officer and senior vice president, said the company board's compensation committee turned to Lincolnshire, Ill.-based human-resources consultant Hewitt Associates Inc. for help on how much to give Schottenstein, whose father co-founded the builder and whose brother is CEO.
Creek said Hewitt reviewed industry standards and deemed the 49-year-old Schottenstein's severance to be in line with packages given to executives at comparable companies. The compensation committee and M/I's full directors approved the package.
The company got to $4.3 million by giving Schottenstein two years' worth of salary and bonus. He's averaged $486,884 in base salary over the past three years, so that equals $973,770. His bonus has averaged $1.66 million, giving him $3.3 million.
He gets half right away, with the remaining $2.15 million paid in installments of $359,000 a month from February to July next year.
He also remains eligible for a prorated bonus for his time worked in 2006, provided the executives earn bonuses for the year.
And Schottenstein gets to keep his company car, with M/I buying out the $54,000 lease and transferring it to him, and $22,000 for medical and dental insurance benefits.
Provided he's interested, since he certainly has the cash, he's got one year to exercise his 48,000 vested stock options.
M/I Homes loses chief operating officer:
Steven Schottenstein resigns as chief operating officer after 27 years with M/I Homes, Inc.
The Title Report - June 6, 2006
After 27 years with M/I Homes, Inc., Steven Schottenstein announced his resignation as chief operating officer to pursue other interests.
Schottenstein will remain on the company's board of directors and serve as vice chair of the board.
Robert H. Schottenstein, chairman of the board, chief executive officer and president, said Steven Schottenstein was vital in the opening of the company's Tampa and Orlando operations in the early 1980s and helped launch the Washington, D.C., operation in the early 1990s.
M/I Homes, Inc. has delivered nearly 65,000 single-family homes which are marketed and sold under the trade names M/I Homes, Showcase Homes and Shamrock Homes. The company has operations in Columbus and Cincinnati, Ohio; Indianapolis, Indiana; Tampa, Orlando and West Palm Beach, Florida; Charlotte and Raleigh, North Carolina; Delaware; and the Virginia and Maryland suburbs of Washington, D.C.
Seperation Agreement between Steven Schottenstein (Executive) and M/I Homes, Inc
United States Securities and Exchange Commission - July 27, 2006
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 27, 2006
M/I HOMES, INC.
(Exact name of registrant as specified in its charter)
Ohio (State or Other Jurisdiction
1-12434 (Commission File Number)
(I.R.S. Employer of Incorporation) 31-1210837
3 Easton Oval, Suite 500, Columbus, Ohio (Address of Principal Executive Offices)
43219 (Zip Code)
(614) 418-8000 (Telephone Number)
N/A (Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a.12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Section 2 - Financial Information
Item 1.01 Entry into a Material Definitive Agreement
On July 25, 2006, M/I entered into a Separation Agreement with Steven Schottenstein (the "Separation Agreement"), who resigned as the Company's Chief Operating Officer on June 15, 2006. Pursuant to the Separation Agreement, M/I agreed to pay Mr. Schottenstein separation benefits in the amount of $4,308,000. Mr. Schottenstein will also be eligible to receive a pro rata portion of the 2006 Annual Bonus to which he would have been entitled based upon M/I's performance in 2006, and he will receive certain other benefits that are more fully described in the Separation Agreement, which is attached to this Form 8-K as Exhibit 10.1.
Item 2.02 Results of Operations and Financial Condition
On July 27, 2006, M/I Homes, Inc. issued a press release reporting financial results for the three and six months ended June 30, 2006. A copy of this press release, including information concerning forward-looking statements and factors that may affect our future results, is attached hereto as Exhibit 99.1. The information in Exhibit 99.1 is furnished pursuant to Item 2.02 on Form 8-K.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers
In connection with entering into the Separation Agreement described in Item 1.01 above, Steven Schottenstein resigned from the Board of Directors of the Company effective as of July 25, 2006.
Item 9.01 Financial Statements and Exhibits.
Exhibit No. Description of Documents
10.1 Separation Agreement effective July 25, 2006
99.1 Press release dated July 27, 2006
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 27, 2006
M/I Homes, Inc.
By: /s/ Ann Marie W. Hunker
Ann Marie W. Hunker
(Principal Accounting Officer)
This Separation Agreement (the "Agreement") is made by and between Steven Schottenstein ("Executive") and M/I Homes, Inc., an Ohio corporation (the "Company").
WHEREAS, Executive has been employed by the Company as its Chief Operating Officer (and in this capacity holds other various positions with the Company and its affiliates), has held various positions as a director, officer and/or manager with the Company's subsidiaries and affiliates, is a trustee of the M/I Homes Foundation (the "M/I Foundation"), and is a member of the Board of Directors of the Company (the "Board") ;
WHEREAS, the parties acknowledge that Executive's employment with the Company will terminate, effective July 21, 2006 (the "Separation Date"); that he has resigned from his position as a trustee of the M/I Foundation and from all positions as a director, officer and/or manager of each of the Company's subsidiaries and affiliates effective as of the Announcement Date; and that he will resign his position as a member of the Board effective as of the Separation Date;
WHEREAS, the parties wish to define the terms and conditions of Executive's separation from service with the Company;
NOW, THEREFORE, in exchange for and in consideration of the following mutual covenants and promises, the undersigned parties, intending to be legally bound, hereby agree as follows:
1. Separation . The Company and Executive publicly announced Executive's separation on June 15, 2006 (the "Announcement Date"), and the parties agree that Executive shall formally separate from service with the Company and each of its subsidiaries and affiliates effective as of the Separation Date and shall resign from the Board effective as of the Separation Date. On the Separation Date, (a) Executive's employment with the Company and all further compensation and remuneration of Executive and all eligibility of Executive under Company benefit plans shall terminate, except as otherwise provided in this Agreement or by applicable law and (b) Executive shall resign from the Board. Executive shall receive all compensation and benefits to which he is entitled as an employee of the Company until the Separation Date.
2. Separation Payments and Benefits. In connection with his separation of service from the Company, Executive and Company hereby agree to specific terms and obligations:
(a) Executive shall receive severance pay in the gross amounts as follows:
(i) $974,000 (which is equal to the Executive's average base salary for the years 2003, 2004 and 2005, times two); plus
(ii) $3,334,000 (which is equal to the Executive's average annual bonus for the years 2003, 2004 and 2005, times two); plus
(iii) an amount equal to the pro rata portion of the 2006 Annual Bonus to which Executive would have been entitled had he remained employed by the Company through the date such 2006 Annual Bonus is paid, based on the total number of days from January 1, 2006 through the Separation Date divided by 365, which amount shall be due if, and only if, Executive would have received his 2006 Annual Bonus if he had remained employed by the Company through the date such 2006 Annual Bonus would have been paid.
The foregoing amounts to total severance of $4,308,000 plus the amount, if any, calculated pursuant to clause (iii) above (collectively, the "Severance"). In addition, Executive shall be entitled to keep the compensation he received from the Announcement Date through the Separation Date. The Severance is intended to compensate Executive for his long and distinguished service to the Company. The amounts described in clauses (i), (ii) and (iii) above shall be paid to Executive, as follows:
(x) Immediate Severance . The Company shall pay Executive $2,154,000 ratably beginning on the Effective Date and ending on January 31, 2007 in accordance with the Company's ordinary payroll practices in effect during such period.
(y) Deferred Severance . The Company shall pay Executive $2,154,000 in equal monthly installments beginning February 1, 2007 and ending on July 1, 2007.
(z) 2006 Annual Bonus . The amount, if any, calculated pursuant to clause (iii) above shall be paid on the date(s) the 2006 Annual Bonus, if any, would have been paid to Executive had Executive remained employed by the Company.
The gross amount of the Severance shall be reduced by ordinary and customary tax withholdings as required by law.
(b) Within 10 days following the Effective Date (as that term is defined in paragraph 20 herein), the Company shall pay Executive a lump sum payment of $22,000, less applicable taxes, to cover the costs of Executive's medical and dental insurance benefits for Executive and Executive's eligible dependents, if any, under the Consolidated Omnibus Budget Reconciliation Act (COBRA) .
(c) With respect to Executive's 48,000 vested stock options, the Company will, upon the Effective Date (as that term is defined in paragraph 20), treat the Executive as retired for purposes of the 1993 Stock Incentive Plan, as amended, and Executive shall have one year from the Effective Date to exercise such vested stock options. Executive acknowledges that he has no ownership interest or exercisable right in or to the 184,000 shares of unvested stock options held by him prior to the Separation Date.
(d) Executive will be deemed retired as of the Effective Date for purposes of Executive Deferred Compensation under the Company's Executive Deferred Compensation Plan, as amended. The Executive Deferred Compensation will be distributed on dates designated by the Executive, subject to the terms and conditions of such plan. The amount of the Executive Deferred Compensation will be determined by the market value on the distribution dates.
(e) Executive is entitled to any amounts which Executive had previously deferred (including any interest earned or credited thereon), pursuant to the Company's 401(k) Plan (payable in accordance with the terms of the plan) and the Company's Nonqualified Savings and Supplemental Plan (payable no earlier than the date that is six (6) months and one day after the Separation Date (or, if earlier, his date of death), and no later than ten (10) business days thereafter).
3. Automobile . In addition to the consideration described in Paragraph 2 above, the Company agrees to buy out the lease (dated December 30, 2004) of the Company automobile currently used by Executive and held by Huntington Leasing Company, valued at approximately $54,000, and title in said automobile shall be transferred to Executive.
4. No Mitigation . N one of the foregoing benefits provided in Paragraphs 2 or 3 shall (i) be subject to any mitigation obligation on Executive's part, or (ii) be terminated or diminished if Executive should accept other employment after the Separation Date, otherwise in accordance with this Agreement.
5. Totality of Payments . Executive agrees that he is not entitled to any payments, compensation, stock options, deferred compensation, benefits, or remuneration of any kind from the Company, other than what he is receiving through this Agreement, on account of any matter, cause or thing whatsoever which has occurred prior to the date of his signing this Agreement.
6. Securities and Tax Considerations .
(a) Internal Revenue Code Section 409A . Notwi thstanding anything in this Agreement to the contrary, the parties hereby agree that it is the intention that any payments or benefits provided under this Agreement comply in all respects with Section 409A of the Internal Revenue Code of 1986, as amended ("Code") and any guidance issued thereunder. In addition, in the event that additional guidance with respect to Section 409A of the Code becomes available, the Company agrees that, upon Executive's reasonable request, it will amend this Agreement solely to the extent necessary and appropriate to avoid adverse tax consequences pursuant to Section 409A of the Code so long as such requested amendment does not adversely affect the Company.
(b) The Company agrees to cooperate as reasonably necessary and appropriate with respect to any equity compensation instructions issued by Executive's broker or authorized representative, subject in all respects to applicable federal, state, local or self regulatory entity securities laws, rules and/or regulations.
7. Executive Covenants .
(a) Unauthorized Disclosure . Executive shall not, during the Severance T erm and thereafter, make any Unauthorized Disclosure. For purposes of this Agreement, "Unauthorized Disclosure" shall mean disclosure by Executive without the prior written consent of the Board or the Chief Executive Officer of the Company to any person, of any confidential information relating to the business or prospects of the Company including, but not limited to, any confidential information with respect to any of the Company's customers, products, methods of distribution, strategies, business and marketing plans and business policies and practices, litigation strategies or defenses, and plans for new business concept s, except (i) to the extent disclosure is or may be required by law, by a court of law or by any governmental agency or other person or entity with apparent jurisdiction to require him to divulge, disclose or make available such information or (ii) in confidence to an attorney or other advisor for the purpose of securing professional advice concerning Executive's personal matters provided such attorney or other advisor agrees to observe these confidentiality provisions. Unauthorized Disclosure shall not include the use or disclosure by Executive, without consent, of any information known generally to the public or known within the Company's trade or industry (other than as a result of disclosure by him in violation of this Paragraph 7 (a)). This confidentiality covenant has no temporal, geographical or territorial restriction.
( b ) Non-Competition . During the Non-Competition Period described below , Executive shall not, directly or indirectly, without the prior written consent of the Company, which consent shall not be unreasonably withheld, own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of (as a stockholder, partner, or otherwise) any corporation, limited liability company, partnership, joint venture, trust or other entity that engages in the building of more than 100 residential housing units per year, determined by closings, within any of the Metropolitan Statistical Areas as the Company or any of its affiliates is now or at such time engaged in homebuilding operations, provided, however, that the "beneficial ownership" (as that term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) by Executive , either individually or as a member of a "group " for purposes of Section 13(d)(3) under the Exchange Act and the regulations promulgated thereunder , of not more than two percent (2%) of the voting stock of any of such entity that is publicly held shall not be a violation of this Agreement .
(c ) Non-Interference . During the Non-Competition Period described below, Executive shall not, either directly or indirectly, alone or in conjunction with another person, interfere with or harm, or attempt to interfere with or harm, the relationship of the Company, its subsidiaries and/or affiliates, with any person who at any time was an employee, customer or supplier of the Company, its subsidiaries and/or affiliates or otherwise had a business relationship with the Company, its subsidiaries and/or affiliates . For the avoidance of doubt, this Paragraph 7(c) does not prohibit Executive from employing his current executive assistant at any time following the Separation Date.
(d) Non-Competition Period . For purposes of this Agreement, the " Non-Competition Period " means the one-year period immediately following the Announcement Date .
(e) Remedies . Executive agrees that any breach of the terms of this Paragraph 7 or of Paragraph 9 of this Agreement , would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law ; Executive therefore also agrees that in the event of said breach or any threat of breach , the Company shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by Executive and/or any and all persons and/or entities acting for and/or with Executive, without having to prove damages, in addition to any other remedies to which the Company may be entitled at law or in equity. The terms of this Paragraph 7(e) shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof , including, but not limited, to the recovery of damages from Executive. Executive and the Company further agree that the provisions of Paragraphs 7(b) and 7(c) are reasonable and that the Company would not have entered into this Agreement but for the inclusion of such covenants herein. Should a court or arbitrator determine, however, that any provision of the covenants is unreasonable, either in period of time, geographical area, or otherwise, the parties hereto agree that the covenants should be interpreted and enforced to the maximum extent which such court or arbitrator deems reasonable. The provisions of this Paragraph shall survive any termination of this Agreement, and the existence of any claim or cause of action by Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants and agreements of Paragraph 7; provided, however, that this paragraph shall not, in and of itself, preclude Executive from defending himself against the enforceability of the covenants and agreements of Paragraph 7. Nothing in this paragraph shall preclude the Company either from asserting any claim for damages it may have for a violation of Paragraph 7 or from seeking equitable relief to enjoin Executive from violating Paragraph 7 .
8. Indemnification .
(a) The Company agrees that if Executive is made a party, or is threatened to be made a party, to any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), by reason of the fact that he is or was a director, officer or employee of the Company or is or was serving at the request of the Company as a director, officer, manager, member, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether or not the basis of the Proceeding is Executive's alleged action in the course of serving as a director, officer, manager, member, employee or agent, Executive shall be indemnified and held harmless by the Company to the fullest extent legally permitted or authorized by the Company's certificate of incorporation or bylaws or resolutions of the Company's Board or, if greater, by the laws of the State of Ohio, against all cost, expense, liability and loss (including, without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or other liabilities or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive in connection therewith, and such indemnification shall continue as to Executive even if he has ceased to be a director, officer, manager, member, employee or agent of the Company or other entity and shall inure to the benefit of Executive's heirs, executors and administrators; provided, however, that nothing herein is intended to indemnify Executive for any acts committed by Executive which unequivocally fall outside the scope of his employment with the Company or his membership on the Board. The Company shall advance to Executive all costs and expenses incurred by him in connection with a Proceeding within 20 calendar days after receipt by the Company of a written request for such advance. Such request shall include an undertaking by Executive to repay the amount of such advance if it shall ultimately be determined that he is not entitled by law to be indemnified against such costs and expenses; provided that the amount of such obligation to repay shall be limited to the after-tax amount of any such advance except to the extent Executive is able to offset such taxes incurred on the advance by the tax benefit, if any, attributable to a deduction realized by him for the repayment.
(b) Neither the failure of the Company (including its Board, legal counsel or shareholders) to have made a determination prior to the commencement of any Proceeding concerning payment of amounts claimed by Executive under Paragraph 8(a) above that indemnification of Executive is proper because he has met the applicable standard of conduct, nor a determination by the Company (including its Board, legal counsel or shareholders) that Executive has not met such applicable standard of conduct, shall create a presumption in any judicial proceeding that Executive has not met the applicable standard of conduct .
(c) The Company agrees to continue and maintain a directors' and officers' liability insurance policy covering Executive, for a period of five years from the Separation Date, with terms and conditions no less favorable than the most favorable coverage then applying to any other senior level executive officer or director of the Company.
9. Cooperation . Executive shall fully cooperate with the Company in defense of legal claims asserted against the Company and other matters requiring the testimony or input and knowledge of Executive, and the Company agrees to reimburse Executive for reasonable costs and expenses incurred as a result thereof. Executive agrees that he will not speak or communicate with any party or representative of any party, who is known to Executive to be either adverse to the Company in litigation or administrative proceedings or to have threatened to commence litigation or administrative proceedings against the Company, with respect to the pending or threatened legal action, unless he is given express permission to do so by the Company, or is otherwise compelled by law to do so, and then only after advance notice to the Company.
10. Release of All Claims .
(a) Release of Company by Executive . In consideration of the receipt of the sums and covenants stated herein, Executive does hereby, on behalf of himself, his heirs, administrators, executors, agents, and assigns, forever release, requite, and discharge the Company and its agents, parents, subsidiaries, affiliates, divisions, officers, managers, directors, employees, predecessors, successors, and assigns ("Released Parties"), both in their individual and representative capacities, from any and all charges, claims, demands, judgments, actions, causes of action, damages, expenses, costs, attorneys' fees, and liabilities of any kind whatsoever, whether known or unknown, vested or contingent, in law, equity or otherwise, which Executive has ever had, now has, or may hereafter have against said Released Parties for or on account of any matter, cause or thing whatsoever which has occurred prior to the date of his signing this Agreement. This release of claims includes, without limitation of the generality of the foregoing, any and all claims which are related to Executive's employment with the Company or any of its subsidiaries, affiliates or predecessors, his resignation from his officer position with the Company, his resignation from the Board, his resignation from positions as a director, officer and/or manager of any of the Company's subsidiaries or affiliates, and his resignation as a trustee of the M/I Foundation; and any and all rights which Executive has or may have had under the following laws: Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, the Civil Rights Act of 1991; Employee Retirement Income Security Act, 29 U.S.C. §1001 et seq .; the Americans With Disabilities Act; the Age Discrimination in Employment Act, as amended; Ohio Revised Code Section 4112.01 et seq .; and all other federal, state, and local statutes, regulations or public policies, as well as the laws of contract, torts, and all other subjects; provided, however, that nothing herein shall be deemed to affect any rights of Executive under this Agreement or to any pension, employee welfare benefits, stock options, or restricted shares which were vested on or prior to the Separation Date or Effective Date, as applicable, and pursuant to this Agreement; and provided further that nothing herein shall be deemed to affect any rights of Executive to indemnification as provided under Paragraph 8 above and for such acts otherwise covered under the terms and conditions of Directors and Officers liability insurance maintained by Company during the employment of Executive.
(b) Age Discrimination Claims and Older Worker's Benefit Protection Act Terms . Executive specifically acknowledges that the release of his claims under this Agreement includes, without limitation, waiver and release of all claims against the Company and Released Parties under the federal Age Discrimination in Employment Act ("ADEA"), and Executive further acknowledges and agrees that:
i.Executive waives his claims under ADEA knowingly and voluntarily in exchange for the commitments made herein by the Company, and that certain of the benefits provided thereby constitute consideration of value to which Executive would not otherwise have been entitled;
ii.Executive was and is hereby advised to consult an attorney in connection with this Agreement;
iii.Executive has been given a period of 21 days within which to consider the terms of this Agreement;
iv.Executive may revoke his signature on this Agreement for a period of 7 days following his execution of this Agreement, rendering the Agreement null and void, provided that such revocation is in writing delivered to J. Thomas Mason, Senior Vice President and General Counsel, M/I Homes of Central Ohio LLC, 3 Easton Oval, Suite 500, Columbus, Ohio 43219;
v.this Agreement is written in plain and understandable language which Executive fully understands; and
vi.this Agreement complies in all respects with Section 7(f) of ADEA and the waiver provisions of the federal Older Worker Benefit Protection Act.
11. Complete and Absolute Defense . This Agreement constitutes, among other things, a full and complete release of any and all claims released by either party, and it is the intention of the parties hereto that this Agreement is and shall be a complete and absolute defense to anything released hereunder. The parties expressly and knowingly waive their respective rights to assert any claims against the other which are released hereunder, and covenant not to sue the other party or Released Parties based upon any claims released hereunder. The parties further represent and warrant that no charges, claims or suits of any kind have been filed by either against the other as of the date of this Agreement.
12. Non-Admission . It is understood that this Agreement is, among other things, an accommodation of the desires of each party, and the above-mentioned payments and covenants are not, and should not be construed as, an admission or acknowledgment by either party of any liability whatsoever to the other party or any other person or entity.
13. Return of Property . Except as provided below, the Company acknowledges that Executive has returned to the Company all Company documents and property in his possession or control including, but not limited to, Personal Computer(s) and all Software, Security Keys and Badges, Price Lists, Supplier and Customer Lists, Files, Reports, all correspondence both internal and external (memoranda, letters, quotes, etc.), Business Plans, Budgets, Designs, and any and all other property of the Company; and the Company shall promptly return to Executive his personal property and files; provided that Executive is expressly permitted to retain, and assume ownership of, (a) his Company-provided cell phone (together with rights to the use of the cell phone number at Executive's sole expense) and BlackBerry device and (b) the furniture in Executive's office; and provided further that Executive is expressly permitted to retain any documents and property necessary for Executive's service as a director of the Company.
14. Knowing and Voluntary Execution . Each of the parties hereto further states and represents that he or it has carefully read the foregoing Agreement, consisting of 10 pages, and knows the contents thereof, and that he or it has executed the same as his or its own free act and deed. Executive further acknowledges that he has been and is hereby advised to consult with an attorney concerning this Agreement and that he had adequate opportunity to seek the advice of legal counsel in connection with this Agreement. Executive also acknowledges that he has had the opportunity to ask questions about each and every provision of this Agreement and that he fully understands the effect of the provisions contained herein upon his legal rights.
15. Executed Counterparts . This Agreement may be executed in one or more counterparts, and any executed copy of this Agreement , including by facsimile, shall be valid and have the same force and effect as the originally-executed Agreement.
16. Governing Law . This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio.
17. Modification . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by Executive and the Company.
18. Assignability . Executive's obligations and agreements under this Agreement shall be binding on Executive's heirs, executors, legal representatives and assigns and shall inure to the benefit of any successors and assigns of the Company. The Company may assign this Agreement or any of its rights or obligations arising hereunder to any party, as part of a sale of substantially all of its assets or other significant change of control.
19. Entire Agreement . This Agreement constitutes the entire agreement between the parties hereto in respect of the subject matter hereof, and this Agreement supersedes all prior and contemporaneous agreements between the parties hereto in connection with the subject matter hereof.
20. Effective Date . This Agreement will become effective on the eighth day following signature by Executive and the Company (the "Effective Date"), unless sooner revoked by Executive by written revocation delivered to the Company's Senior Vice President and General Counsel.
[signature page to follow]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and witnessed.
/s/ Steven Schottenstein
M/I HOMES, INC.
By: /s/ J. Thomas Mason
J. Thomas Mason, Senior Vice President and General Counsel
FOR IMMEDIATE RELEASE
Contact: Phillip G. Creek
Senior Vice President, Chief Financial Officer
M/I Homes, Inc.
M/I Homes Reports
Second Quarter and First Half Results
Columbus, Ohio (July 27, 2006) - M/I Homes, Inc. (NYSE:MHO) announced results for the second quarter and six months ended June 30, 2006.
The Company recorded net income of $18.3 million and diluted earnings per share of $1.29 in 2006's second quarter, representing a 4% increase over the $17.6 million of net income earned during the second quarter of 2005 and a 7% increase over 2005's second quarter diluted earnings per share of $1.21. Included in net income and diluted earnings per share reported for the 2006 second quarter are after tax charges totalling $4.8 million or $0.34 per diluted share resulting from: (i) the resignation of the Company's Chief Operating Officer; (ii) severance and other related expenses associated with workforce reduction primarily in the Company's Midwest markets; and (iii) deposit write-offs and other charges with respect to abandoned land transactions. Net income and diluted earnings per share for the first half of 2006 were $34.7 million and $2.43, respectively, compared to $34.4 million and $2.37, respectively for the first half of 2005. In addition, second quarter and first half results also include a $0.02 and $0.06 per share diluted charge, respectively, related to the implementation of SFAS 123R, Share Based Payments in 2006.
Homes delivered for the 2006 second quarter increased 16% to 987 from 853 homes delivered in 2005's second quarter. For the six month period ended June 30, 2006, homes delivered were 1,819, up 12% from 1,628 in the same period of 2005. New contracts for 2006's second quarter were 764, a decrease of 35% compared to 2005's second quarter of 1,172. For the first six months, 2006's new contracts were 1,901, a 16% decrease compared to 2,250 in 2005. The sales value of backlog of homes at June 30, 2006 was $1.025 billion with backlog units of 2,889 and an average sales price of $355,000. The backlog of homes at June 30, 2005 had a sales value of $1.052 billion with backlog units of 3,310 and an average sales price of $318,000. M/I Homes had 165 active communities at June 30, 2006 compared to 127 at June 30, 2005.
Robert H. Schottenstein, Chief Executive Officer and President, commented, "From an income standpoint, we were very satisfied with the strength of our second quarter and first six months results. Our closings were strong and our gross margins reached a record 27% - largely the result of a planned geographic shift of our closing mix, with nearly 40% of second quarter closings coming from Florida compared to 24% a year ago. We were particularly pleased to report an increase in year over year income considering the impact of the $0.34 per diluted share charges recorded in the second quarter."
Mr. Schottenstein continued, "As mentioned in our units release issued earlier this month, industry conditions in general continue to be challenging. From a macro standpoint, traffic is down, cancellation rates are up, demand has weakened and in many markets, an over-supply of inventory exists. We believe conditions will continue to be challenging for the remainder of this year -- at a minimum. In terms of guidance, we currently expect to deliver approximately 4,500 homes in 2006. In light of the above mentioned external market factors, we are reducing our earnings guidance to a range of $6.30 - $6.65."
The Company will broadcast live its earnings conference call today at 4:00 p.m. EDT. To hear the call, log on to the M/I Homes' website at mihomes.com , click on the "Investor Relations" section of the site, and select "Listen to the Conference Call." The call, along with any applicable reconciliation of non-GAAP financial measures, will continue to be available on our website through July 27, 2007.
M /I Homes, Inc. is one of the nation's leading builders of single-family homes, having delivered nearly 66,000 homes. The Company's homes are marketed and sold under the trade names M/I Homes, Showcase Homes and Shamrock Homes. The Company has homebuilding operations in Columbus and Cincinnati, Ohio; Indianapolis, Indiana; Tampa, Orlando and West Palm Beach, Florida; Charlotte and Raleigh, North Carolina; Delaware; and the Virginia and Maryland suburbs of Washington, D.C.
Certain statements in this Press Release are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Words such as "expects," "anticipates," "targets," "goals," "projects," "intends," "plans," "believes," "seeks," "estimates," variations of such words and similar expressions are intended to identify such forward-looking statements. These statements involve a number of risks and uncertainties. Any forward-looking statements that we make herein and in future reports and statements are not guarantees of future performance, and actual results may differ materially from those in such forward-looking statements as a result of various factors relating to the economic environment, interest rates, availability of resources, competition, market concentration, land development activities and various governmental rules and regulations, as more fully discussed in the Risk Factors section in the Company's Annual Report on Form 10-K for the year ended December 31, 2005. All forward-looking statements made in this Press Release are made as of the date hereof, and the risk that actual results will differ materially from expectations expressed in this Press Release will increase with the passage of time. The Company undertakes no duty to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. However, any further disclosures made on related subjects in our subsequent filings, releases or presentations should be consulted.
Jeffrey backers to present ideas to save mansion
By Ina Horwitz-Whitemore
Bexley This Week - Thursday, September 21, 2006
A group called the Save the Mansion Committee intends to present to Bexley City Council its ideas about Jeffrey Mansion at 7 p.m. Tuesday, Oct. 10.
The group is sponsored by the Bexley Heritage Fund.
Pete Halliday, fund president and committee chair, has appeared at council several times in the past four years, urging the city to consider enhancing the 101-year-old mansion.
At its Sept. 14 meeting, the group -- made up of city officials and citizens -- heard reports from five subcommittees.
Steven Schottenstein spoke for the building committee, which also includes Don Casto, Jon Meyer, Mike Rosen, Michael Schiff and Stelios Giannopoulos.
Schottenstein reported that his committee has agreed to solicit architects for proposals on the mansion. The group has engaged Mark Corna of Corna, Kokosing, a general contractor, to assist.
According to building committee estimates, the current cost to fix the mansion today, bringing it up to code, would be about $2.1-million. That figure doesn't include architecture, stair-issue compliance, site issues, landscaping and other code issues.
The building committee is estimating an overall cost of $2.5-million, not including parking matters.
Schottenstein said for the building committee to proceed, it needed parameters on what should be in the building -- the size of the kitchen and social hall, for example, and how many meeting rooms would be needed.
"Once these parameters are determined, we can seek out architects to make presentations and develop a master plan," he said.
Halliday presented the finance subcommittee report. He said an improved mansion should be operationally self-sustaining within two years.
The capital needs of the enhanced facility are assumed to be $3.5- to $5-million, depending on parking, a new kitchen and new space, Halliday said. In addition, an operating fund of $1-million is needed, he said.
The finance committee had reviewed methods of financing and thought various avenues were available. These methods include sale of bonds to citizens, naming rights, leasing fees, estate gifts, matching funds, grants and open-house tours. State and federal grants, the Columbus Foundation, Columbus Jewish Federation, corporations, partnerships and contractors also were listed as potential donors.
"It is the opinion of the finance committee that the enhancement and operation of the Jeffrey Mansion on a self-sustaining basis is doable and would significantly increase the attractiveness and excitement of our community," Halliday said.
The parks and recreation subcommittee report was submitted by Chris Masoner, Beth Crane, Angelique Smith, council's Robyn Jones and Crystal Salt.
The group looked at Franklin Park Conservatory's charges as a rental template. For example, the conservatory charged $3,500 for a Saturday rental (6 p.m. to midnight) and a beverage minimum of $2,500. The report noted that the conservatory has a liquor license and uses Cameron Mitchell as its preferred caterer.
Some comments from the subcommittee:
Any addition would need to accommodate 250 to 300 people.
A large portion of mansion operating income would be generated from major events.
Two kitchens should be considered.
Separate the recreation department from the event department. The consensus was for the recreation department to be a complete separate entity.
Staffing is key for the event business.
In summary, the report said the creation of an ample-sized party room and adequate kitchen should generate more than $100,000 yearly, while having only a moderate effect on recreation department programming.
Council member Jeff McClelland reported on findings from the organization subcommittee. He said a community-wide foundation -- governed by a board and allowing for tax-deductible contributions -- could be formed. McClelland pointed to the New Albany Foundation, which has raised $15-million.
"To establish a foundation, we feel community forums should be held to educate people," he said. "Sometimes, Bexley can be reluctant to change."
Halliday said he expected there would be people who may believe the foundation would serve as competition for the Bexley Education Foundation. He said he thinks the new foundation would attract a whole different group of people and would need to be competitive.
"That is why I suggest open forums with the public," McClelland said.
The public relations subcommittee reported on its discussion. Members of the group include Judy Brachman, Janet Halliday, Kelly Unangst and Steve Williard.
Much of the discussion focused on the recommendation to establish a Web site to inform the public about Save the Mansion Committee activities. A centerpiece would be a set of questions and answers about progress.
At the Sept. 14 meeting, members discussed possible questions that could be asked of community members in determining what the public wants -- the issue over cost to renovate or build new; where parks and recreation would operate; parking issues; serving alcohol; and usable square footage.
Pete Halliday said he didn't know if he would have the same enthusiasm to move things along if the mansion were tore down.
"Building new is less expensive than remodeling," Meyer said. "But obviously, there is an emotional cost to us."
Brachman said it is important people know the committee is looking at alternatives and asked if an alternative for the title Save the Mansion should be considered?
"The mansion is history. The mansion is Bexley," said Pete Halliday. "Architects can come up with ideas for the mansion and additions to it. I think we can bring 'Save the Mansion' into more than bricks and mortar."
M/I Homes fills empty board seat
Business First of Columbus - Friday, November 10, 2006
M/I Homes Inc. has filled a board seat left vacant when Steven Schottenstein stepped down as chief operating officer in June.
J. Thomas Mason, senior vice president, general counsel and secretary for the Columbus-based homebuilder, fills the empty seat effective immediately. Mason has been with M/I Homes (NYSE:MHO) since 2002.
Schottenstein, whose brother Robert Schottenstein is CEO and chairman of the company, had been with M/I Homes for 27 years, and COO since 1999. At the time of his departure, M/I Homes said he was leaving to "pursue other interests."
M/I Homes, which has been struggling with the downturn of the housing market, reported a 40 percent drop in third-quarter profit to $15.2 million, on $306.2 million in revenue, compared with a $25.1 million profit, on revenue of $332.5 million, a year ago.
Business First of Columbus - Thursday, July 27, 2006
by Dan Eaton Business First
M/I Homes Inc. turned a profit in the second quarter despite a slumping market for new homes, a write-off of abandoned land transactions, and charges related to a $4.31 million severance package for its former chief operating officer.
The Columbus-based company reported net income Thursday of $18.3 million, or $1.29 a share, for the quarter ended June 30. That's a 4 percent increase from second quarter 2005, when the company earned $17.6 million, or $1.21 a share.
Revenue was up 17 percent from $266 million to $312 million.
M/I (NYSE:MHO) increased its profit despite $4.8 million in after-tax charges during the quarter, including $3.3 million after tax from a $4.31 million severance package for former COO Steven Schottenstein, who resigned June 15. Schottenstein had been with M/I for 27 years.
Schottenstein's brother Robert is CEO and chairman of the company, and both are sons of the late Irving Schottenstein, who co-founded M/I in 1976 with his cousin Melvin.
The rest of the charges were split between $816,000 after tax for abandoned land deals and $720,000 for severance payments for about 100 employees whose jobs were cut, mostly in the company's Midwest markets.
Robert Schottenstein said in a press release that the company has weathered the slump in demand for new housing, centered in the Midwest, by shifting its focus to faster-growing markets, particularly Florida. The Sunshine State accounted for 40 percent of the company's closings in the quarter, compared to 24 percent in 2005.
M/I's homes completed and delivered for the quarter were up 16 percent to 987, from 853 last year, but contracts to build houses were down 35 percent to 764, from 1,172, boding ill for future revenue.
Schottenstein said the company expects conditions to remain challenging for the remainder of the year.
Jewish Federation of Columbus - October 23, 2007
Nearly 50 Columbus, Ohio Lions of Judah and Endowed Lions were invited to view and learn about the private Schottenstein Judaica collection. This extraordinary compilation of both contemporary and ancient Judaica has been recognized as one of the newer major collections in the country.
The program and lunch hosted by Jay and Jeanie Schottenstein on October 23 provided an in-depth overview of their artwork. Particular pieces that were highlighted included unique Jewish artifacts which had Judaic, cultural and historic significance with some pieces dating back to the 1600s.
The 2008 Lion of Judah Annual Campaign Event Chairs were Joan Wallick and Jennifer Cammeyer, who led a strong team of committee members which included: Marilyn Estreicher, Denise Glimcher, Stephanie Leader, Elaine Lewin, Stephanie Lewin, Anna Robins, Rebecca Shocket, Audrey Tuckerman, Jen Wasserstrom and Nancy Wasserstrom.
Columbus was fortunate to have both of our Kipnis-Wilson/Friedland winners present, Judith Swedlow and Betty Schiff. Schiff, our most recent winner, also honored the women by making the Motzi before lunch.
Special remarks were provided to the group by Columbus Lions Dee Dee Glimcher and Dr. Susan Steinman, who just returned from a special Jewish Leadership Journey to Poland and England. The women provided the group with a poignant and moving description of the trip and the impact it had on them.
A Vibrant Jewish Community - Second Annual Grand Event Brings 500 Community Members Together
Jewish Federation of Columbus
"As we usher in the New Year, it's only fitting that we come together as a Community and acknowledge the importance of our Federation's Annual Campaign and the essential support it provides to hundreds of thousands of Jews here in Columbus, Israel and around the world," stated Federation Board Chair Steven Schottenstein as he welcomed more than 500 Community members to the Second Annual Grand Event.
Hosted by Abigail and Leslie Wexner and co-chaired by Heidi Levey and Steve Tuckerman, the evening featured Alan Dershowitz as its keynote speaker. Additionally, the evening included the installation of the Federation's Community Board and the presentation of the Therese Stern Kahn and William V. Kahn Young Leadership Award to Brian Tuckerman and the Ben M. Mandelkorn Distinguished Community Service Award to Myer Mellman.
This was a tremendous kickoff to the Federation's Annual Campaign and in the words of Alan Dershowitz, "tzedekah is not an option, but a necessity - it speaks to who we are as a people."
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