PROCEDURAL POSTURE 
 
  The case before this court stems from an action brought 
 
before the Court of Common Pleas in the County of Geauga, 
 
State of Ohio for Divorce and Custody by the plaintiff-
 
appellee. For the first few months, the defendant was without 
 
representation and costs, though requested.The Pre-trial era 
 
of the case was held under direction of Referee Elaine 
 
Tassey. The defendant repeatedly attempted to have the trial 
 
removed to the proper forum for divorce and custody. The 
 
trial was held in front of Judge Hans R. Veit on April 14, 
 
1992 with judgement granting divorce and custody of the two 
 
minor children given to the plaintiff on April 15, 1992.  
 
 Original appeal, prepared by defendant's former counsel  
 
prior to his leaving the case, regarding the judgement, was 
 
filed by the defendant in forma pauperous, on grounds of  
 
court failure to provide custody and spousal support to 
 
defendant. 
 
The defendant attempted to amend the appeal to include CR 60 
 
inclusions, and presented motions to the appellate for 
 
extensions of time, leave to submit, supplement the 
 
record, inclusion of evidence, CR 75 temp./ perm. spousal 
 
support and temp. / perm. custody, Representation and Costs,  
 
Supporting document, CR 52 difinitive statement and Stay of 
 
Appeal pending outcome of Hearing in Common Pleas court on  
 
indigency, and Additional Time for Delays. 
 
 In Morningstar v. Morningstar(1990),63 O. App. 3d 653,  
 
the court finds that: 
 
 "Court of appeals may enter a declaratory judgement pursuant 
to Art. IV, í 3(B)(1)(f) in order to give effect to its 
interpretation of the judgement of the trial court." 
 
 
 Addendum is refered to and presented for continuing  
 
referance of the court. Pamphlet contains precedent,law. 
 
 The defendant requests referal of case to the proper forum, 
 
record to be certified and sent, representation and costs 
 
provided to him and the children in that forum, or reversal 
 
of judgement concerning custody and spousal support in his  
 
favor, proper disbersement of assets and debts pursuant to 
 
the actual factors of the case, and law, and legislative 
 
intent, release from this state (of court and plaintiff 
 
choice), and pursuant to misconduct by the plaintiff-  
 
appellee, continued jurisdiction for custody be refered to 
 
the proper court in the State of Kentucky, record from this 
 
state submitted for referance. 
 
 FIRST ERROR 
 
  The State of Kentucky should have been found as proper forum 
 
due to the plaintiff-appellee removing the children from that 
 
state without the permission or consent of the defendant- 
 
appellant (3109.26,UCCJA, 28 USCS í 1738A). (1) Kentucky was  
 
the children's resent home, until removal of the children by 
 
the plaintiff-appellee without the consent of the defendant, 
 
(2) A much deeper connection with the family due to fourteen 
 
years of residence in that state, and (3) There was  
 
substantial evidence obtainable in that state on past, 
 
present and future care of the children: through in-home 
 
babysitters; work records; people in knowledge of: the  
 
family; of agreements between the parties; the safety concern 
 
of the children when under care of the plaintiff; career or 
 
work potential of the defendant and the plaintiff: and other 
 
testimony and evidence which could have been addressed at a 
 
trial in the State of Kentucky.(3109.25). The defendant 
 
presented a motion for relocation to the court and presented 
 
proper forum for custody requests during the first pre-trial  
 
conferance, with additional statements presented and 
 
affidavits on file. 
 
Defendant refers to addendum pgs. 12-41***********  for 
 
UCCJA, Parental Kidnapping Act, and suggests review of 
 
Chapter 3109. 
 
Civ R 3 (D) When a court upon motion of any party or upon its 
own motion, determines: (1) that the county in which the 
action is brought is not a proper forum;(2) that there is no 
proper forum for trial within this state; and (3) that there 
exists a proper forum for trial in another jurisdiction 
outside this state, the court shall ................... . 
 
Civ R 12 (B): Every defence,........, except that the 
following defences may be made by motion:(1) lack of 
jurisdiction over subject matter, (2) lack of jurisdiction 
over person, (3) improper venue, ........ . 
 
  (H)(3) When ever it appears by suggestion of the parties or 
otherwise that the court lacks jurisdiction of the subject 
matter, the court shall dismiss the action. 
 
Civ R 75(A) these Rules of Civil Procedure shall apply in 
actions for divorce, annulment, alimony and related 
proceedings, with modifications or exceptions set forth in 
this rule. 
 
 28 USCS í 1738A is referred to in brief on basis of  
 
legislative intent. Though custody had not been granted in 
 
the state of Kentucky, during the first pre-trial conferance, 
 
the defendant informed the referee that he had talked with 
 
various attorneys in Kentucky and in other states, both 
 
prior to the move to Ohio by the plaintiff, and after. Their  
 
requests were for retainers and costs before acceptance of 
 
the case. They had also advised him that he was required to 
 
ensure proper housing and necessities even if he did not  
 
consent to the removal, if he intended to protect his rights 
 
to the children. The defendant helped the plaintiff move 
 
because of that reason and attempted to explain to the 
 
plaintiff the problems with this move. She had done her own 
 
research and knew the problems with the move financially and 
 
concerning the schooling of the children but moved anyway. 
 
 The plaintiff then spent or converted all family funds and  
 
loan value to herself, her representation, and the move. A 
 
request was made to open the converted funds for retainers 
 
and costs, or for representation and costs to be provided, 
 
which was ignored or dismissed. 
 
 At the onset of the case in this state, under the afore 
 
mentioned laws and/or codes and/or rules, the most 
 
appropriate measure for the basis of jurisdiction, 
 
representation and costs, and determination of divorce and 
 
custody, should have been referral to state of more 
 
appropriate forum, assignment of costs to the plaintiff.  
 
UCCJA pgs. ad.18-22,   46 O Jur 3d Family Law--pamphlet 
 
pgs.28-30 
 
(46 O Jur 3d pg. 287 pam. pg. 28 "Physical presence of the  
child in Ohio does not automatically confer jurisdiction.") 
 
 
(A) In Motion for Relocation, with attached affidavit, the  
 
court found that the plaintiff removed the children from 
 
Kentucky without consent, that the defendant was the proper 
 
custodian of the children and that the plaintiff-appellee 
 
should be required to pay for relocation of the children back 
 
to Kentucky.(3109.26)  46 O Jur 3d pamphlet pg. 30 
 
 At the first pre-trial conferance held in front of referee, 
 
statements were presented regarding in-home babysitters, work 
 
records, witnesses, and other evidence obtainable in the 
 
state of Kentucky. The referee was advised that attorneys had 
 
been contacted in the state of Kentucky, and that proper 
 
forum for a trial was to be had in that state.(3109.25) Under 
 
UCCJA (addendum pgs.*12-29* ), and Chapter 3109, the court 
 
should have found jurisdictional requirements, proper forum,  
 
procedural methods to be used in interstate custody hearings, 
 
proper assignment of costs, due process requirements of the 
 
court, proper court actions upon indications of "wrongfully 
 
taken" children, time indications for filing custody in 
 
previous "home state", state referal or out-of-state measures 
 
for evidence and testimony, and other measures that must be 
 
taken to insure proper custody hearings. 46 O Jur 3d Family. 
 
 In In re Guardianship of Wonderly,67 OS 2d 178, the court  
 
finds (regarding U.C.C.J.A.): 
 
 "..... the act clearly contemplates that more than one state 
will meet the afore-mentioned jurisdictional prerequisites, 
as evidenced by the Commissioners' note to section 3 (RC í 
3109.22) which states in part:  
 
" * * * Paragraph (2) perhaps more than any other provision 
of the act requires that it be interpreted in the spirit of 
the legislative purposes expressed in section 1. The 
paragraph was phrased in general terms in order to be 
flexible enough to cover many fact situations too diverse to 
lend themselves to exact descriptions. But its purpose is to 
limit jurisdiction rather than to proliferate it. The first 
clause of the paragraph is important: Jurisdiction exists 
only if it is in the child's interest, not the merely the 
interest or convenience of the feuding parties, to determine 
custody in a particular state. The interest of the child is 
served when the forum has optimum access to relevant evidence 
about the child and family. There must be maximum rather than 
minimum contact with the state. 9 Uniform Laws. Anot., at 
124 "" 
 
 The court later stated: 
 
"......, we have taken into consideration the Commissioner's 
Note to Section 7 (RC í 3109.25) of the Act, as follows:"The 
purpose of this provision is to encourage judicial restraint 
in exercising jurisdiction whenever another state appears to 
be in a better position to determine custody of a child. It 
serves as a second check on jurisdiction once the test of 
section 3 or 14 has been met.* * *" 9 uniform Laws Anot., at 
139. 
 
 
 The court further stated: 
 
"It is important to bear in mind, however, that (1) our 
primary focus is on the children, not the feuding parties, 
and (2) the best interests of the children are served when 
the state which has the optimum access to relevant 
information makes the custody determination. See 
Commissioners' Note to Section 3, supra." 
 
And in the next paragraph the court found: 
 
" In rendering our judgement today, we are fully cognizant of 
the following remarks of Justice Fairchild of the Supreme 
Court of Wisconsin: 
 " ' I suppose that one of the fundamental difficulties in 
the situation is that trial judges (if not appellate judges, 
as well) are somewhat loath to defer to courts of other 
states. This may be due to a tendancy of an individual to 
think that in a situation demanding wisdom of Solomon he can 
come closer {188} than anyone else. And there is always the 
suspicion that even a judge will be a little more sympathetic 
with a constituent.' " " 
 
 And in later paragraphs the court stated: 
 
 " With the adoption of the UCCJA by an increasing number of 
jurisdictions, the time has come for judicial cooperation 
among states. In matters as serious as child custody, all 
courts should eliminate the concept of a "home court" 
advantage, which operates to the disadvantage to the child.  
 While statutes can be amended and case law can be 
distinguished or overruled, we take judicial notice of the 
fact that children grow up only once. When a mistake is made 
in a custody dispute, the harmful effects are irrevocable. To 
minimize this possibility, the Act emphasizes that the state 
with optimum access to relevant facts should make 
determinations of this nature." 
 
 
 In Syrios v. Syrios(1990),69 O APP 3d 246, the court found  
 
pursuant to 3109.26(A): 
 
 " The statute was adopted to insure, in part, that children 
do not become pawns to thier parents' plans and desires to 
gain custody." 
 
 It further stated: 
 
 " It is for reasons such as this that RC 3109.26(A) was 
enacted.............. A blind adherence to the literal 
meaning of "wrongfully taken" in the statute could only bring 
more strife to those children whose parents seek ways to 
circumvent the law and shop for more sympathetic forums." 
 
 
 In 28 USCS í1738A Parental Kidnapping Act the court finds  
 
proper forum for determination of custody, applicable acts, 
 
other factors for consideration and determination. 
 
 The referee, and later the court, was advised that the  
 
plaintiff was going to use this court to obtain custody 
 
because there was too much evidence and too many witnesses 
 
available in the State of Kentucky for her to obtain custody 
 
there. tr pages- 
 
 Though the state of Kentucky may no longer be proper for 
 
this consideration due to the passage of time, moving of  
 
witnesses, repeated contact of possible witnesses by the 
 
plaintiff and possibly other agencies, and other 
 
encrouchments upon the case that would not have accured had  
 
the case been referred there at that time, this state holds 
 
testimony, and affidavits, from the defendant, of the types 
 
of information that would have been available there. 
 
 This state also now holds information (submitted motions and 
 
affidavits to Appellate) of the plaintiff's continued efforts 
 
to defeat the law. The defendant will stand by those 
 
statements also. The evidence is available, now, in your 
 
state. 
 
 
(B) In the Motion for Restricted, Controled Access the court  
 
finds that the plaintiff had committed two potentially life 
 
threatening acts in 9/91 and was a potential danger to the 
 
children when under her control, these were stated as  
 
example. cr 24 & 35 (46 O Jur 3d í495 pamphlet pg.36) 
 
 These affidavits were part of the items addressed during the  
 
first pre-trial hearing in front of the referee. 
 
 Under Am. Sub. S.B. 3, UCCJA, and 3109.04 the court should 
 
have instituted an investigation into the occurences  
 
contained within the affidavit and background of previous 
 
family history (UCCJA, 3109.04(C)) with referral to the 
 
proper court, that being the State of Kentucky (3109.25), or 
 
Juvenile Court. In the Motion for Removal of the Plaintiff 
 
from Residence (cr 21>22,38) the court should have found 
 
inclusions listed under 2151. (2151.353(A) 46 0 Jur 3d 
 
pamphlet pg.44) (2151.353 (C)((1),(2),(3)addendum pgs  
 
35-37..46 O Jur 3d. pamphlet pg.45) 
 
 The court should also have found that the matters presented 
 
to the court demanded calander priority under due process and  
 
equal protection guaranties of state law/statute, UCCJA, and 
 
the constitutions of Ohio and the United States (pgs. 12-41*) 
 
(1) Under 2919.22(A), 2151.353(A)(3) (addendum page * ) the  
 
court should have found reasons for restraint of the 
 
plaintiff-appellee and custody to the defendant-appellant. 
 
 The Motions for: temp./perm. Custody, Restricted Controled 
 
Access, Removal Of Plaintiff, Relocation to State of Last 
 
Residence, temp./perm. Spousal Support, should have supplied 
 
the court with the evidence necessary, statements presented 
 
to the referee should have ensured such.Civ R 75(M)(1) 
 
(a) Under 2151.421(A)(1) the court finds that an attorney 
 
acting in thier official or professional capacity who knows 
 
or suspects that a child faces a threat of suffering any  
 
physical or mental wound, injury, disability, or condition of 
 
nature shall immediately report or cause reports to be made of 
 
that knowledge or suspicion to the proper authority. 
 
 Am. Sub. S.B. 3,  Investigation and prosecution of child   
 
 abuse and neglect reports,  included the judge or his 
 
representative as people required to report knowledge. 
 
 The defendant was without representation and attempted to 
 
supply the information to the apparent proper authority. 
 
 In OAG 78-038. The phrase "having reason to believe" as used 
in RC 2151.421 is equivalent to "known or suspected" as used 
in 45 CFR 1340.3-3(d). 
 
  (b) the court should have supplied the children with 
 
representation under equal protection guarantees and due 
 
proccess (RC 2151.04(C)) (Civ R 75(B)(2), (D)). 
 
(3) Investigation of current and previous family history was  
 
required to have been made under UCCJA, 3109.04, if this 
 
state assumed jurisdiction, and evidence should have been 
 
brought to the court, under equal protection and due  
 
process requirements of the constitutions and law. 
 
Civ. R. 75(D) On filing of a complaint for divorce, 
............, where minor children are involved,.........., 
the court may cause an investigation to be made as to the 
characture, family relations, past conduct, earning ability 
and financial worth of the parties to the action. 
 
(4) Pursuant to the Motion for Restitution of Loss, the court  
 
should have issued the writ or started proceedings, in the 
 
best interest of the children and the defendant. Civ R 
 
75(A),(B)(1),(2), 42 Am Jur 2d, Infants,  
 
 
 IN In re Patrick(1990),61 O Misc 2d 565, the court finds: 
 
"RC í 2743.56(C)(1), as ammended effective March 11, 1989, 
by its own language, retroactively applies to all 
applications for an award of reparations filed on or after 
March 11,1987 so as to extend the time for filing an 
application for an award of reparations by a minor victim of 
criminally injurious conduct from one to two years from the 
date the indictment was filed against the alleged offender. 
 
 
 In Calmes v. Goodyear Tire & Rubber Co.(1990),61 OS 3d 470 
 
the court finds: 
 
"Misconduct greater than negligence is required for award of 
punitive damages. This component is expressed in the language 
"great probability of causing substantial harm," which 
replaces language from earlier cases such as "outrageous," 
"flagrant," and "criminal."" 
 
 
  In State v. Clifton(1989), 65 O App 3d 117, the court 
found as basis: 
 
 "A restitution order must be based on the true economic loss 
sustained by the victim."  
 
 
 The referee, and later the court, was supplied with 
 
statements of substantial loss and conversion by the 
 
plaintiff, additional loans taken out by the plaintiff, the 
 
plaintiff's repeated excessive expenditures without regard 
 
for the family or children, excessive cost of living in this 
 
state, better schooling available for the children, and 
 
possible jobs for the defendant in the state of 
 
Kentucky.(addendum pgs.********Compensible loss-) 
 
 The defendant directs the court to 42 Am Jur 2d, Infants, 
 
for continuing referance. 
 
(5) The court was again presented with a motion pursuant to 
 
3109.25, pre-trial, the court erred in its dismissal. UCCJA 
 
and Chapter 3109 state a differant course of action. 
 
 The court had apparently designed the case, by assigning the 
 
case to April of 1992 to obtain the one year, proper 
 
jurisdictional requirements over the defendant. 
 
 The court was presented with additional pleas and the  
 
defining factors during the trial by the defendant pursuant 
 
to forum, procedure, process, representation, costs, statute,  
 
constitutional guaranties, evidence, and other matters that 
 
may be educed from the transcript. 
 
 SECOND ASSIGNMENT OF ERROR 
 
   If the court intended to deem proper jurisdiction of the  
 
action, inclusions listed under 3105.18(C)(1)(k), under 
 
chapter 2151, and juvenile protection laws, required the 
 
court to remove the plaintiff-appellee from the residence (cr  
 
21 & 38) to allow the defendant-appellant to receive the 
 
training or schooling neccessary for him to obtain suitable  
 
employment and wages. The court was advised in the first and 
 
second pre-trial meetings, that the defendant-appellant would 
 
like to have retraining or schooling due to his marital  
 
responsibilies and the repeated moves by the plaintiff- 
 
appellee, the court was advised again at the trial, of the 
 
occurences at the pre-trial hearings, and his continued need,  
 
and that per agreement between the parties, the next move 
 
(this move, though it was to be to a southern state and for 
 
substantially more money) was to be the time for his 
 
schooling or retraining, per prior agreement between the 
 
parties, due to his suppling support for the plaintiff's 
 
schooling and career. 
 
(1) Under 3105.18 the court finds for consideration: 
 
(C)(1)(k) 
 The time and expence necessary for the spouse who is seeking 
spousal support to ÿaquire education, training, or job  
ÿexperiance so that the spouse will be qualified to obtain 
appropriate employment, provided the education, training, or 
job ÿexperiance, and employment is, in fact, sought; 
 
  The court instead, at the first pre-trial, dismissed the 
 
motion (cr 44),  
 
 The court was advised at second pre-trial,that the defendant 
 
had contacted J.T.P.A., Geauga Co. Welfare, and Burton Branch 
 
of Kent State University, regarding funding for schooling, 
 
job training programs, availabily of Headstart for the 
 
youngest child, and state funding for help in support of 
 
household, upon custody and the plaintiff leaving residence,  
 
the court instead (Agreed Judgement Entry..cr 64), ordered 
 
the defendant to seek work and pay two bills, in January 
 
1992, Christmas season lay-off time. The defendant, of 
 
course, attempted to comply. 
 
 THIRD ERROR 
 
  The court was required to supply representation to the 
 
defendant-appellant and children, due to the original alluded 
 
complaint of GROSS NEGLECT OF DUTY to the family and minor 
 
children, and the criminal and juvenile laws pertaining to 
 
that complaint, UCCJA (ad *Sec. 7 & 8) infers representation 
 
and costs to be suppied to a party if necessary. Civ R 75(A) 
 
 Since the original complaint inferred that the defendant was 
 
in neglect of the children, the possiblity of criminal or 
 
legal action in juvenile court or the court of common pleas, 
 
was possible.   
 
 In the best interest of the children, a party in an action 
 
for interstate custody, shall be supplied with costs if 
 
necessary, and investigations shall be made of previous 
 
history of the family in the previous state, the Act gives 
 
referance to how the costs might be obtained if unavailable 
 
from the parties. Addendum pgs. *13-22*********** 
 
 Under the Constitutions of The United States of America and  
 
Ohio, a person charged with criminal violations is to be 
 
represented by an attorney.  addendum pgs. 30-34 
 
 Also in the Constitutions are statements that a person may 
 
not be deprived of his property or liberty without due 
 
process of law. Defendant refers to Supporting document 
 
supplied to appellate and addendum. 
 
 Requests were made to the court for representation and 
 
costs, none was supplied. 
 
 FOURTH ASSIGNMENT OF ERROR 
 
  The court should have included the children of the parties 
 
as co-defendants in the action, if it intended to proceed 
 
with the case, after indications presented to it in the form 
 
of motions and affidavits, and statements presented at the 
 
first pre-trial conferance. UCCJA, and the Juvenile laws of 
 
Ohio indicate such. 
 
Civ R 75(B)(2) When it is essential to protect the interest 
of a child, the court may join the child of the parties as a 
party defendant and appoint a guardian ad litem, and legal 
counsel if necessary, for such child and tax the costs 
thereof; 
 
 FIFTH ASSIGNMENT OF ERROR 
 
  The court should have ordered investigation into the family 
 
pursuant to the motion presented for investigation of 
 
conversion of family funds by the plaintiff-appellee in the 
 
best interest of the children and the furtherance of justice. 
 
3109.04(C) Prior to trial, the court may require an 
investigation to be made as to characture, family relations, 
past conduct, earning ability, and financial worth of each 
parent..... .  
 
Civ R 75 (D): On filing of a complaint for divorce, 
annulment, or alimony, where minor children are involved, 
......., the court may cause an investigation to be made as 
to ÿcharacture, family relations, past conduct, earning 
ability and financial worth of parties to the action. 
 
 The defendant refers to the Motion For Investigation 
 
presented to the court of common pleas, dismissed by the 
 
court. UCCJA presents a differant course of action. Addendum  
 
Sec.s 7(pg.s 18-20) 8(pgs.20-22) 18-21(26-28) 
 
 In Am. Sub. H.B. 514, and Am. Sub. S.B. 3, the court finds  
 
referance to guidelines under which the legislature gives the 
 
court proper procedure to follow. 
 
 SIXTH ASSIGNMENT OF ERROR 
 
  The court should have required the plaintiff-appellee to 
 
bring or supply the motioned for records, and other requested 
 
articles to the pre-trial conferances and trial, if the court 
 
intended to continue with jurisdiction. UCCJA and Chapter 
 
3109 dictate proper procedure and means. The records (with 
 
the possible witness's testimony from Kentucky, a list which 
 
was supplied to defendant's attorney) would have shown 
 
extreme devotion by the plaintiff to her career, disregarding 
 
time spent with the family and children. They also would have  
 
shown the court the extent that the family's money had gone 
 
to the support of the plaintiff's career. It would, of 
 
course, still have left proper witnesses at a prohibitive 
 
distance. The defendant's attorney was presented with a 
 
Deposition By Questionaire, which he failed to produce to the  
 
court, or proceed with during the action. 
 
Transcript pages *********************. 
 
 SEVENTH ÿASSIGNMEMT OF ERROR 
 
  The court apparently ignored the fact that the plaintiff- 
 
appellee was supplying misleading testimony and evidence to 
 
the court. Both Federal and Ohio rules and law dictate a 
 
certain course of action to be taken when occurances such  
 
as these, take place in the court. 
 
 During the first pre-trial hearing the defendant-appellant 
 
explained to the referee that the plaintiff-appellee would be 
 
attempting to supply the court with misleading testimony and 
 
evidence. She had already attempted to state that she the 
 
proper custodian of the children, that Ohio was the proper 
 
forum for a determination of custody, and that the defendant 
 
had made no attempt to supply support for the family. The 
 
defendant refers this court to the original papers from the 
 
court of common pleas, and the court transcript. 
 
 Under chapters in Ohio law the parties must make certain 
 
statements regarding custody, forum, and factors of the case. 
 
 Under rules of court procedure and evidence, the defendant 
 
should be afforded all opportunities available, to protect 
 
his legal interests and rights. 
 
 The plaintiff-appellee's own witness (sister in-law from  
 
Michigan) stated at the hearing, that the plaintiff and 
 
defendant had an agreement (which supported the defendant's 
 
statements to the court), that the defendant would raise the  
 
children, and the parties would work on furtherance of the 
 
plaintiff's career while in Kentucky. The court should have 
 
interpreted that as the plaintiff supplying misleading 
 
testimony. The testimony supports the fact that the defendant 
 
gave up his career (as was stated at pre-trial and trial)  
 
in support of marital responsibilities and plaintiff's 
 
career, contrary to plaintiff's statement of not trusting the  
 
defendant to supply the support for the family after marrying 
 
him with that work history, which had supplied support for 
 
the plaintiff's schooling and support during the previous ten  
 
years before the marriage, during which the defendant and 
 
plaintiff were married at common law and co-habitating.  
 
 Defendant refers to addendum (pg.34) for 2921.11, the court 
 
finds: 
 
(A) No person in any official proceeding, shall knowingly 
make a false statement under oath or affermation, or 
knowingly swear or affirm the truth of a false statement 
previously made, when either statement is material. 
 
 The appellate court has motions and affidavits in it's 
 
record indicating altering of documents. 
 
 Under 2921.12 (addendum pg. 34),the court finds: 
 
(A) No person, knowing that an official proceeding or 
investigation is in progress, or is about to be or likely to 
be instituted, shall do any of the following: 
 
 (1) Alter, destroy, conceal, or remove any record, document, 
or thing, with purpose to impair its value or availability as 
evidence in such proceeding or investigation; 
 
(2) Make, present, or use any record, document, or thing, 
knowing it to be false and with purpose to mislead a public 
official who is or may be engaged in such proceeding or 
investigation, or with purpose to corrupt the outcome of any 
such proceeding or investigation. 
 
 Under 2921.13 (addendum pg.35), the court finds: 
 
(A) No person shall knowingly make a false statement, or 
knowingly swear or affirm the truth of a false statement 
previously made, when any of the following applies: 
 
  (1) The statement is made in any official proceeding. 
 
  (2) The statement is made with the purpose to incriminate 
another. 
 
  (3) The statement is made with the purpose to mislead a 
public official in performing his official function. 
 
 Due to the lack of funding or costs, and/or representation,  
 
and/or investigations supplied to the defendant and children 
 
during the course of the case, the defendant and children 
 
stand before this court with their basic and constitutional 
 
rights violated. 
 
 He re-presents his supporting arguements from the Appellate 
 
Court Record, the court record, and Transcript pages. 
 
 The appellate was supplied with motions and affidavits  
 
indicating misleading testimony and evidence supplied to the 
 
common pleas court. So that indications before both the 
 
Appellate and the Lesser court, show that the limited  
 
evidence and testimony supplied in the Ohio courts, and the 
 
limited evidence and testimony available to the courts, was 
 
in fact, corrupted by the plaintiff and witness, making the 
 
Ohio forum an inappropriate forum, for both divorce and, most  
 
importantly, the issue of custody. 
 
 In  Bright v. Ford Motor Co.(1990),63 O.App. 3d 256 the  
 
court finds: 
 
 If, as a consequence of the destruction or spoilation of 
evidence in wilful violation of a court order, it has become 
impossible for either party to meet the burden of persuasion 
concerning:(a) the proposition that the innocent party has 
been prejudiced as a result of the destruction or spoilation; 
or, (b) the converse of that proposition, then the party who 
has destroyed the evidence, as the wrongdoer, must suffer the 
presumption that his wrongful act was prejudicial to the 
innocent party's prosecution or defence of the action. 
 
 The evidence and testimony presented by the plaintiff and 
 
one of her primary witnesses, was misleading, based upon 
 
altered documents. The evidential papers produced to the 
 
defendant's attorney, and supplied to the court were altered 
 
or based upon the alteration. Ateration of the documents, and 
 
testimony supplied from, and refering to, the altered 
 
documents is in violation of law, corrupting both parties  
 
testimony and substantially violating the defendant's rights 
 
and ability to defend himself and the children. The court was 
 
supplied with testimony from the defendant that the evidence 
 
and testimony supplied by the plaintiff and her attorney was 
 
misleading, insufficient, and showed only what the plaintiff 
 
wished to show the court. 
 
 The defendant's attorney had evidence to refute the 
 
testimony and evidence being supplied by the plaintiff and 
 
her witness. He failed to present the evidence, refute the 
 
testimony, and was questioned in court by the defendant as to 
 
why he was not presenting the evidence available to him. 
 
 
 In Mid-American Acceptance Co. v. Lightle(1989),63 O.App. 3d 
 
the court finds: 
 
" Gross or egregious fraud may support an award of punitive 
damages, but simple fraud does not. In order to prove that 
punitive damages are appropriate, it must be shown that the 
fraud contained an element of malice or ill will." 
 
 And in State v. Mattison(1985,Cuyahoga Co.),23 O.App.3d 10,  
 
23 O.BR 43,490 NE2d 926, motion overr. the court finds that: 
 
" In determining whether the decision of a trial court is 
against manifest weight of the evidence, the following 
factors are guidelines to be taken into account by the 
reviewing court: (1) The reviewing court is not required to 
accept as true the incredible; (2) whether the evidence is 
uncontradicted; (3) whether a witness was impeached; (4) what 
was not proved; (5) the certainty of the evidence; (6) the 
reliability of the evidence; (7) whether a witness' testimony 
is self-serving; (8) whether the evidence is vague, 
uncertain, conflicting or fragmentary." 
 
 EIGHTH ASSIGNMENT OF ERROR 
 
  The court entered its judgement disregarding motions 
 
presented to it, and on court record for, requests from the 
 
defendant, for spousal support. The circumstances of the case 
 
presented to the court dictated that spousal support be 
 
supplied to the defendant pursuant to 3105.18 do to: 
 
(1) his deferral of careers because of the plaintiff's 
 
(2) his support of plaintiff during her schooling 
 
(3) his support of her career and expenses entailed 
 
(4) his primary child care giving (househusband) 
 
    responsibilities 
 
(5) his retraining or schooling necessary because of: 
 
    (a) his marital and child rearing responsibilities 
 
    (b) the plaintiff's repeated moves during the course of 
 
        her career 
 
    (c) his loss of his careers because of deferral to  
 
        plaintiff's 
 
    (d) his age 
 
    (e) his physical problems from working to support 
 
        plaintiff in school and career 
 
    (f) his loss of wage potential because of the afore         
 
        mentioned reasons 
 
    (g) the agreement between the parties regarding  
 
        retraining or schooling 
 
    (h) the plaintiff moving to a state of higher cost 
 
(6) the plaintiff expending substantial family funds 
 
    (including the money converted to her private I.R.A., the 
     
    last of the family funds) in pursuit of her career, the 
 
    move to this state, retaining of her attorney, and the  
 
    ensuing poverty of the defendant for reasons supplied 
 
     here and in affidavits before the court 
 
 The court of common pleas and appellate, erred in exclusion 
 
of evidence from the defendant showing support of plaintiff's 
 
schooling, federal and state law infer acceptance. 
 
 The defendant refers to addendum attached pgs. ********, and  
 
supporting document in appellate record, to supply 
 
precedent,code and/or law, and constitutional guaranties. 
 
 NINTH ASSIGNMENT OF ERROR 
 
  The court was provided with the agreement between the 
 
parties for separation of the physical "in the home" 
 
property, which the defendant had drawn up after request by 
 
his attorney for ONLY PHYSICALLY IN THE HOME PROPERTY, as the 
 
final seperation agreement, then the court was told to ignore 
 
the values on the agreement and find them equal and all OTHER 
 
PROPERTY of the family should remain under the control of 
 
the party in whose name it was. The court was advised through 
 
testimony of the defendant, that the agreement was signed by 
 
him only as PHYSICALLY IN THE HOME PROPERTY, and the court  
 
still needed to separate the plaintiff's I.R.A. and 
 
retirement benefits. The court was also advised that the 
 
attorney for the defendant had apparently entered into  
 
agreements with the opposing counsel without consultation 
 
with him, in apparent violation of the trust invested in his 
 
attorney. The plaintiff had submitted her trial statement 
 
asking for equal disbursal of the Vanguard account (cr 68) 
 
but neglected to include the retirement value from her Lake 
 
Metro Parks employ. Leaving unvalued, unaddressed property of 
 
the parties. 
 
 TENTH ASSIGNMENT OF ERROR 
 
  The court apparently disregarded testimony and evidence 
 
supplied to the court of the safety concerns regarding the 
 
plaintiff and children, the plaintiff's lack of concern for 
 
the children's welfare, the lack of concern the plaintiff had 
 
for time spent with the children, the plaintiff missing key 
 
emotional problems relating to the children, the lack of  
 
concern the plaintiff had for the schooling of the children, 
 
the lack of concern the plaintiff had for the monetary 
 
considerations of the family, and the lack of concern the 
 
plaintiff had for factors outside of her own self interest 
 
and career. Disregarding 3109.04, and laws pertaining to  
 
neglect of children and family, and failing to investigate 
 
the family (Civ R 75(D)), the court made it's statement. 
 
Transcript is reviewable in whole regarding these issues. 
 
 ELEVENTH ASSIGNMENT OF ERROR 
 
   The court appears to disregard UCCJA, 3109.22, 3109.25, 
 
3109.26, 28 USCS í 1738A, Civ R 3, Civ R 12, precedent,  
 
legislative intent, and other factors, such as the fact that 
 
the court had restained the children to the county, dismissed 
 
a motion for relocation, thereby ensuring the events to 
 
happen. Disregarding, of course, that there was another state 
 
with an even closer connection with the children. The court 
 
also ignores testimony that a better school system was 
 
available in the state of Kentucky. That the children were 
 
well adjusted to that community prior to the plaintiff 
 
removing them without the defendant's consent. 
 
 TWELFTH ASSIGNMENT OF ERROR 
 
  The court disregards testimony that the defendant has some 
 
problems with his physical health because of his support of  
 
the plaintiff's schooling and career, and his attempt to 
 
further his own career, prior to his deferal to plaintiff's. 
 
 In Reichert v. Reichert(1985), 23 O App 3d 67, the court 
 
finds that: 
 
"Court is required to consider the physical conditions of 
the parties in deciding alimony." 
 
 THIRTEENTH ASSIGNMENT OF ERROR 
 
  The court attempts to hold the defendant AT FAULT for 
 
factors caused by the plaintiff's repeated moves during the 
 
marital years and his marital responsibilities, conversely, 
 
the court might be attempting to hold the defendant AT FAULT 
 
for his furtherance of his career prior to marriage. During 
 
the first two years of marriage the defendant had set-up his 
 
own business, until required by the plaintiff to close it so 
 
that she might pursue her career. 3105.18 
 
 FOURTEENTH ASSIGNMENT OF ERROR 
 
  The court appears to consider the value of child nuture by a  
 
man to be less important than the nuture supplied by a woman.  
 
The court has also conveniently ignored testimony that the  
 
defendant was also supplying money to support the family 
 
prior to the excessive expenditures by the plaintiff. The 
 
court also ignoring the fact that the defendant had supplied  
 
support to the family prior to the move by providing 
 
childcare to other people's children and/or working and/or 
 
unemployment. And the courts apparent effort to disregard the 
 
fact that the defendant or his family had supplied the 
 
majority of the necessities for the children, not the 
 
plaintiff.  
 
 FIFTEENTH ASSIGNMENT OF ERROR 
 
  The court ignoring that the defendant's employment was no
 
more uncertain there, than in this state, in fact, it would  
 
have been significantly less so, due to the family having 
 
lived there prior to the plaintiff's move, this was of 
 
course, presented to the court. transcript... 
 
 The court ignoring the fact: that the family had come from  
 
the State of Kentucky; the defendant had friends, referances, 
 
and other ties to help him find, more suitable, employment in 
 
that state. That, according to testimony supplied to the 
 
court, the area from which the plaintiff had removed the 
 
family had a cost of living significantly lower from net 
 
income than the Cleveland area. That Kentucky had a 
 
nationally recognized, superior public school program for the 
 
children, that the savings enjoyed by the children and 
 
defendant upon returning to that area would have allowed the 
 
defendant to put the eldest child into the private, 
 
"discovery type" school for which he had prepared her. And 
 
the fact that the defendant presented possible viable 
 
employment to the court, in Kentucky, and that his physical 
 
presense in that state would have ensured such. 
 
 SIXTEENTH ASSIGNMENT OF ERROR 
 
  The court has again ignored the welfare and safety of the  
 
children with this statement. As per previous error entries, 
 
the appellate court should be able to ascertain the problem  
 
with this statement. 
 
 SEVENTEENTH ASSIGNMENT OF ERROR 
 
  The court has again ignored testimony supplied to it,
 
stating: that the forum was inappropriate for the actions;  
 
that the defendant's representation had not consulted with 
 
him properly; that the defendant's attorney had supplied none 
 
of the household records available; that the defendant's 
 
attorney had supplied none of the witnesses to the defense of 
 
the case at trial, either from Ohio or Kentucky; that from 
 
hearsay the defendant had heard about the court, the 
 
defendant was led to believe, that it did not matter what 
 
evidence or testimony was presented to the court, the court 
 
would give custody to the mother; that the defendant was 
 
extremely upset about the actions of the court, and his 
 
attorney; that he was under extreme stress because of the 
 
divorce action itself; that the court would make it's 
 
judgement based on insufficient, misleading, evidence and 
 
testimony; and the other indications that were presented to 
 
the court, including the repeated referance by the 
 
plaintiff's attorney to the defendant being a leach upon the 
 
plaintiff. (Arguement Disparaging Defendant).  
 
 The court appeared, to the defendant by his observations in  
 
the court, to place little relevance on the defendant's 
 
testimony. This was also supplied to the court. That is, 
 
apparently, part of the basis for the insecurity and bizarre 
 
demeanor statement.  
 
 The court has also apparently ignored, that the defendant  
 
had attempted to supply some form of representation for 
 
himself and the children during his forced presentation 
 
before the court, just as he is now attempting to protect the 
 
legal interests of himself and the children in this court. 
 
 This brief and the records should refute the insecurity and
 
bizarre behavior classification, that the court has 
 
apparently included, to support it's decision. 
 
 EIGHTEENTH ASSIGNMENT OF ERROR 
 
  Under sub heading (g) the court imputed an unreasonable 
 
amount of income to the defendant due to his lack of 
 
employment at the time, the Cleveland area losing 
 
approximately 45,000 jobs, the economy and cost of living in 
 
this state, the employability and wage potential of the  
 
defendant because of the moves, childcare giving, and newness  
 
to the state. 
 
 6) An order the court knows can not be met because of the 
 
above and the assignment of half the plaintiff's debts 
(NINETEENTH ASSIGNMENT OF ERROR) . 
 
11) the court then orders the defendant to pay the costs of 
 
the proceeding. 
 
 NINETEENTH ASSIGNMENT OF ERROR 
 
  The court unfairly divided the debts pursuant to the 
 
testimony supplied stating: that Commonwealth Credit Union 
 
loan was totally the plaintiff's (the plaintiff used this to 
 
obtain additional money, over and above the family money used 
 
for her trips, conventions, and other self interests, that 
 
substantial amounts of the loan were re-embursed to the  
 
plaintiff which was not used to pay-off the loans, but for 
 
her own personal use) less five hundred dollars the  
 
defendant had put on for his attorney's retainer, which he 
 
had to wait to obtain until sufficient minimum funding was 
 
available, requiring him to obtain apparent ineffective 
 
counsel; that the Master Card was completely and totally the 
 
plaintiff's (she was the only one to have ever used the loan)
 
because that was originally the loan she took out for her 
 
move to Ohio, which was transferred to the Master Card, so 
 
that she could put an additional one thousand dollar retainer 
 
on it to obtain her lawyer; that the defendant was the only  
 
party to have paid the Visa payments until the loss of his 
 
job because of his inability to supply the money that the 
 
plaintiff was spending on herself, without regard for the  
 
family or children. Legislative intent and law suggest a far 
 
different dispersal. 
 
 TWENTIETH ASSIGNMENT OF ERROR 
 
  The court, having assigned all marital monetary assets to 
 
the plaintiff, knowing the financial condition of the 
 
defendant, and knowing the actual factors of the case, 
 
required the defendant to vacate the household with only the 
 
limited property the defendant had (of which he had to sell 
 
a portion to comply with the order), with no employment,no 
 
money or assets with which to obtain: living quarters; health 
 
insurance, look for work, or even supply sustenance. 
 
 TWENTY FIRST ASSIGNMENT OF ERROR 
 
  The court, in effort to correct judicial error, rendered the 
 
nunc pro tunc order to place upon the record the fact that 
 
it had carefully considered the factors of the case, and 
 
found that there was no viable reason for spousal support, 
 
after stating, in it's first judgement entry, that no spousal  
 
support was requested. 
 
 
3 App(3d) 192, 3 OBR 129,444 NE(2d) 475,(Cuyahoga,1981), 
 
Musca v. Chagrin Falls: 
 
" Civ. R. 60(A) authorizes the correction of clerical 
mistakes only, not substantive changes." 
 
McKay v. McKay- Supporting document-appellate records. 
 
 The defendant refers the court to this brief, the court 
 
records, the appellate records and motions, and the 
 
transcript of the case. The defendant then refers the court 
 
to 3105.18 and federal guidelines for thier indications. 
 
 FINAL OR TWENTY SECOND ASSIGNMENT OF ERROR 
 
  As presented under Issues presented for Review and Arguement 
 
this court must now carefully review the factors of the case.  
 
 The constitutions guaranteed due process and equal 
 
protection, the laws, code, and statute state certain  
 
variables that must be applied, and the true best interest of 
 
the children required thier protection and welfare. Gender 
 
has no basis. 
 
 In the court's statement " The interest of the children 
 
would best be served by designating the mother as the 
 
residential parent and legal custodian of the children." the 
 
court has delivered the final affront to the very judicial  
 
process under which the peoples of the several states exist, 
 
it totally ignores the law, precedent, and the evidence 
 
before it. 
 
(1) The court should have granted custody of the children to 
 
the defendant-appellant pursuant to his being the primary 
 
care giver since the children's birth, the supplier of 
 
nuture-pursuant to tender years doctrine, the lack of concern 
 
the plaintiff-appellee had for the welfare of, and safety of, 
 
the children, the repeated moves by the plaintiff and the  
 
possiblity of many more, the other indications before both 
 
this court and the lesser, and the best interest of the 
 
children. UCCJA and Chapter 3109 demand proper placement. 
 
 Under  3109.04, custody requires best interest of the  
 
children be served upon the children. 
 
 In Charles v. Charles(1985),23 O. App. 3d 109, the court 
 
found: 
 
 " There is no longer a presumption that the mother is 
entitled to custody of a child of tender years." 
 
 In Glover v. Glover(1990), 66 O. App. 3d 724, the court 
 
found: 
 
  Domestic relations court will decide to whom care, custody, 
and control of minor children should be awarded, giving 
paramount consideration to the best interests of the children; 
such determination  requires court to consider all relevant 
factors, including those statutorily enumerated. 3109.04 
 
" While not specifically listed in statute, role of child's 
primary caretaker is factor warranting consideration in 
evaluating child's interactions and interrelationships with 
parents for purposes of determining custody award." 
 
 In Seibert v. Seibert(1990),66 O.App. 3d 342, the court 
 
finds: 
 
" Primary concern in child custody case is child's best 
interest; child's best interest is to be determined by 
considering all relevant factors, including those statutorily 
enunciated. 3109.04" 
 
" Child's primary caretaker is relevant factor in fashioning 
custody award." 
 
"  Parent is not presumed to be preferred parent because case 
involves child of tender years; rather, child's tender years 
or age is relevant factor which merits consideration in 
determining child's best interest." 
 
" ...... court failed to consider child's tender years and 
relied upon possible future circumstances, ....." 
 
 The court was supplied with testimony, that the defendant 
 
had raised the children since their birth essentially without 
 
help from the plaintiff. 
 
 In Thrasher v. Thrasher,(1981),3 O.App. 3d 210, the court  
 
finds: 
 
" Suitable parent has paramount right to custody so long as 
such custody is not detrimental to the child." 
 
 Defendant refers to addendum pgs. *2-41**************, and  
 
the other Assignment of Errors, for additional precedent,  
 
law/\statute/\rule/\*, constitutional guaranties and other 
 
court indications and required responses. 
 
 SUMMATION 
 
  I submit to the appellate court these thoughts: 
 
 Would the court have done the same if the situations were 
 
reversed with the woman in my position, and the man in hers? 
  
Would the court have failed to do the required investigation? 
 
 Would the court have left the woman totally without money, a 
 
job, a place to live, childless, unable to have any other 
 
children (the defendant had a vasectomy less than 12 months  
 
before the plaintiff filed for divorce), barely employable 
 
because of her marital responsibilities, and at a wage scale  
 
significantly lower than her previous business or work would 
 
have supplied, after her raising the children and other 
 
people's children, after her husband had spent all thier money 
 
or converted it to his own use in pursuit of his career or 
 
representation, where the husband had removed the children 
 
from thier home and thier friends, taking them to a new  
 
state after four previous moves during the six years of his 
 
career, where the mother had reported real safety concerns to 
 
the court, where she had supplied the court with: testimony 
 
of his previous and continuing lack of concern for the 
 
welfare of the children and family; with the fact that her  
 
husband was supplying misleading testimony and evidence to 
 
the court; would she have been required to remain without  
 
representation through the important pre-trial era of the 
 
case after supplying the court with affidavits stating the 
 
facts concerning the case and the impropriety of the forum;
 
would she have had any of these things happen to her, then 
 
ending up labeled as in-secure and with bizarre behavior, 
 
ordered to vacate the premises with no money, no job, no  
 
monetary assets, no health insurance, without her children, 
 
in a state in which she did not wish to live ?  
 
 And then been required to attempt her own appeal without 
 
representation and costs? 
 
 According to all the precedent and law I can find, this 
 
would not be the case. 
 
 Since the total evidence and testimony from the plaintiff 
 
was, is, and should continue to be, questioned, and which is  
 
the only basis for this court to have assumed jurisdiction in 
 
the first place, the judgement, in its entirity, stands 
 
corrupt, outside of law. We have been held for almost two (2) 
 
years under duress, and in violation of our rights. My former 
 
wife and the lesser court have made me an indigent. 
 
 Wherefore I submit to the court, that the common pleas court  
 
went beyond mere abuse of discretion, even beyond 
 
unconscionable abuse of discretion, to a level that is, or 
 
borders on being indictive, of shear gender bias and 
 
preferance, without regard for the court stated "best 
 
interest of the children", without regard for the factors of 
 
the case, without regard for law guaranteed civil rules and  
 
rights, and without regard for constitutionally guaranteed 
 
EQUAL rights and DUE process.   
 
 REQUESTED RELIEF 
 
  Pursuant to these issues and facts and others presented  
 
through affidavit and motion and/or supporting documents, I 
 
demand that I be given custody of the children, I be supplied 
 
with spousal support, I be allowed to return to the "home 
 
state" from which the plaintiff removed the family, the 
 
assets and debts distributed according legislative and law 
 
intent in light of the financial AND legal misconduct by the  
 
plaintiff, the jurisdiction of continued custody be referred 
 
back to the state of appropriate forum (Kentucky), or 
 
certification of court records to that forum, and temporary 
 
custody and spousal support be granted to me pending 
 
investigation and determination in that state, representation  
 
and costs to plaintiff or other.( UCCJA ) 
 
 
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