Hertneky v. Hertneky

[Cite as Hertneky v. Hertneky, 2026-Ohio-3511.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY BRIAN T. HERTNEKY, CASE NO. 2026-P-0009 Plaintiff-Appellee, Civil Appeal from the - vs - Court of Common Pleas, Domestic Relations Division JENNIFER A. HERTNEKY, Defendant-Appellant. Trial Court No. 2024 DR 00535 OPINION AND JUDGMENT ENTRY Decided: September 8, 2026 Judgment: Affirmed Brian T. Hertneky, pro se, 108 Chelmsford Drive, Aurora, OH 44202 (Plaintiff-Appellee). Jennifer A. Hertneky, pro se, 753 East Reagan Parkway, Apt. 231, Medina, OH 44256 (Defendant-Appellant). MATT LYNCH, P.J. {¶1} Appellant, Jennifer A. Hertneky n.k.a. Ishtar A. Hertneky (“Wife”), appeals the judgment of the Portage County Court of Common Pleas, Domestic Relations Division, granting her and appellee, Brian T. Hertneky (“Husband”), a divorce. Although Wife raises numerous assignments of error, she failed to file transcripts of the hearings below and did not file a brief in compliance with App.R. 16. Husband did not file a brief. After reviewing Wife’s assigned errors inasmuch as we are able, as well as the record and the pertinent law, we determine there are no errors of law and affirm the judgment of the trial court.  {¶2} In July 2024, Husband filed a complaint for divorce. Husband alleged the parties were married in Ontario, Canada, on September 8, 2016. Two children were born as issue of the marriage, E.H. (d.o.b. March 24, 2017), and M.H. (d.o.b. Sept. 5, 2018). Husband further alleged Wife was guilty of extreme cruelty and the parties are incompatible. In his prayer for relief, Husband requested the court to designate him the temporary and permanent residential parent of the children, equitably distribute the marital assets and liabilities, order the parties to pay their separate debt, and award him child support. {¶3} A guardian ad litem (“GAL”) was appointed for the children. {¶4} The divorce hearing was held on August 25 and 26, 2025, and a post-trial hearing was held on December 15, 2025, to address the post-trial motions Wife filed. {¶5} In a thorough 49-page judgment entry issued on January 30, 2026, the trial court granted the parties a divorce on grounds of incompatibility. The court first reviewed the procedural circumstances surrounding the divorce and post-trial hearings. The court provided two American Sign Language (“ASL”) courtroom interpreters for the hearings because both parties are deaf. In addition, one of the interpreters was present for the temporary custody hearing, and several status and pretrial hearings. The court reviewed the interpreters’ qualifications, and both parties stipulated their satisfaction with the accommodation. The court also confirmed the parties had line of sight to the interpreters and their seating permitted them to see both interpreters, the other party, counsel, and the judge. {¶6} Wife knowingly and voluntarily proceeded pro se during the trial and the post-trial hearing, and Husband knowingly and voluntarily proceeded pro se during the post-trial hearing. PAGE 2 OF 15 Case No. 2026-P-0009  {¶7} The court reviewed the parties were married on September 8, 2016, they separated in 2021, and Husband filed for divorce on July 31, 2024. A temporary hearing was held on September 14, 2024, at which both parties were represented by counsel. The court granted Wife’s counsel’s motion to withdraw on April 24, 2025, and between then and June 16, 2025, Wife filed more than 65 pro se filings in the trial court. The trial court noted Wife was notified that most of these filings were not properly before the court because they were either improper or otherwise failed to comply with the Rules of Civil Procedure and the court’s local rules. {¶8} On July 1, 2025, a pretrial was held at which the trial court addressed Wife’s failure to effectuate service and her failure to respond to discovery, notified the parties that the rules of evidence apply to the divorce hearing, and affirmed the parties’ satisfaction with the interpreters. The GAL also gave his preliminary recommendation. He reported the children wished to remain in the city of Aurora with Husband, they loved their school, and they wished to spend time with Wife. {¶9} The following day, July 2, 2025, Wife filed a “motion to preserve the discrimination, trauma, and violation of rights,” alleging for the first time that she was not afforded an interpreter when she met with the GAL. Wife also filed a formal complaint against the GAL several days later. {¶10} The GAL filed his report and recommendation on August 18, 2025. On the same day, Wife filed three documents, in which she asserted allegations against Husband, the GAL, and the GAL’s report, and advanced arguments on her review of the case. She also included a request for Husband to undergo a psychological evaluation, which the court found untimely because it was filed one week prior to trial. PAGE 3 OF 15 Case No. 2026-P-0009  {¶11} At the divorce hearing, Wife orally requested an in camera interview of the children. Husband did not object, and the court scheduled and held an interview on September 5, 2025, with the GAL present. Wife had attempted to file a written motion for an in camera hearing of the children several months prior, but was unsuccessful because she failed to perfect service on Husband and the GAL. {¶12} The court also addressed Wife’s allegation that the GAL did not accommodate her with an interpreter during their meetings, despite her failure to request one. The GAL confirmed he did not use an ASL interpreter and explained he communicated with Wife via an application on her phone during a meeting with Wife and her former counsel. Wife never raised a complaint until after the GAL gave his preliminary recommendation. Wife acknowledged the court had advised an interpreter was available for her meetings with the GAL if she wished, the court had formalized this in a judgment entry on April 3, 2025, and she never requested an interpreter. The court found it concerning that the GAL had been involved in this case for more than nine months and Wife attended five hearings but did not voice her discontent until after the GAL’s preliminary recommendation. Despite this, the trial court gave Wife the option to recess the divorce trial so she could meet with the GAL and both interpreters. Wife elected to do so, and the trial was continued until the following day. The next day, August 26, 2025, the GAL filed a supplemental report. Wife indicated she was “satisfied” and “happy” with the accommodation provided, and she was content for the trial to continue. {¶13} The court found the parties came to an agreement on their personal property, which the court accepted, and further found the parties were to retain their separate accounts, debts, vehicles, and insurance. PAGE 4 OF 15 Case No. 2026-P-0009  {¶14} Wife requested spousal support. Accordingly, the court made extensive findings under each factor set forth in R.C. 3105.18. The court concluded the evidence did not support a finding that spousal support for either party was appropriate or reasonable. Although the parties were married for nine years, they were only together as a couple for five years and had been supporting themselves for several years. Further, Wife’s earned income is only slightly less than Husband’s, and when her earned income is combined with her social security disability benefits, her income exceeds Husband’s annual household income by $6,320. {¶15} After noting that neither party motioned or proposed to the court a shared parenting plan, the court reviewed its custody determination pursuant to the factors set forth in R.C. 3109.04(F)(1). The court thoroughly reviewed each individual factor based on the evidence presented, as well as the wishes expressed by the children during the in camera interview and the GAL’s report, recommendation, and testimony. {¶16} In its consideration of child custody, the court also reviewed that at the time of the trial, the GAL was not comfortable recommending Wife have unsupervised parenting time. Wife filed ten additional filings after the last day of trial, and during the post-trial hearing, the court heard additional testimony from Husband, Wife, and the GAL on the issue of child custody. The court found Wife was successfully exercising her supervised parenting time through Place of Peace, she had not missed any sessions, and she confirmed her intent to relocate to Maryland immediately after the proceedings. Wife alleged Husband failed to provide information through Our Family Wizard, a co-parenting application for child custody, but she failed to provide any evidence in support of her allegations. The GAL was not aware of any evidence to support Wife’s allegations. PAGE 5 OF 15 Case No. 2026-P-0009  {¶17} Husband acknowledged Wife’s supervised visitations have gone well and it would be appropriate for her to have unsupervised visits. Just three days after the post- trial hearing, Wife filed a “motion to compel co-parenting communication and sharing of child information.” Since that time, Wife also filed a statement and four motions regarding false allegations posted by Husband on social media, as well as a request to relocate with the children to Maryland. {¶18} The court concluded it was in the children’s best interests to designate Husband the sole residential and legal custodian. The court noted Wife’s logistical issues. When Wife relocated to Ohio during these proceedings, she chose to live in Medina, an hour away from Husband and the children in Aurora. The court awarded Wife parenting time and attached to the final decree of divorce the standard parenting schedule as well as a sample long-distance parenting time schedule should Wife file a notice of intent to relocate to Maryland. {¶19} The court found Wife’s child support obligation to be $580.65 per month for both children based on Husband’s annual earned income ($36,400.00), Wife’s annual earned income ($34,320.00) plus her annual social security disability benefits ($8,400.00), plus a 10% adjustment for Wife’s exercise of parenting time that included more than 90 overnights, and in consideration of all other relevant factors. The court attached a child support computation worksheet pursuant to R.C. Chapter 3119. The court noted neither party presented evidence of whether the children were eligible to receive benefits under Wife’s social security disability benefits award and encouraged the parties to explore the option since this could impact Wife’s child support obligation. {¶20} The court found it was in the children’s best interests to deviate Wife’s child support obligation downward to $500.00 per month ($250.00 per child) because there are PAGE 6 OF 15 Case No. 2026-P-0009 time and financial costs associated with Wife’s parenting time. The court noted Wife’s decision to choose a residence one hour away from Husband, and her possible decision to relocate to Maryland, brought about these costs. {¶21} Wife timely appealed and raises eight assignments of error for our review: {¶22} “[1.] The trial court’s custody determination is against the manifest weight of the evidence. {¶23} “[2.] Failure to consider relevant evidence (including police reports). {¶24} “[3.] Misinterpretation of temporary custody agreement. {¶25} “[4.] Failure to consider domestic abuse in best interest analysis. {¶26} “[5.] Improper best interest determination (R.C. 3109.04). {¶27} “[6.] Failure to consider full timeline (including Maryland relocation). {¶28} “[7.] Violation of Due Process and ADA Rights. {¶29} “[8.] Unjust financial orders (child support and spousal support).”1 {¶30} At the outset, we observe our review is severely constrained because Wife failed to file a transcript of the divorce trial and post-trial hearing. Without a transcript of the proceedings, we must presume the validity of the proceedings in the trial court. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). “It is an appellant’s duty to provide a record of the trial court’s proceedings that is necessary for the resolution of [the] appeal even if, through no fault of the appellant, a verbatim transcript of the proceedings below is unavailable. . . . Hence, because there was no transcript of the hearing or some other acceptable alternative as set out in App.R. 9, this court must presume the regularity 1. Wife also filed supplemental assignments of error and entirely failed to brief them. App.R. 16(A)(7) requires “[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review . . . .” Accordingly, we disregard the supplemental assignments of error pursuant to App.R. 12(A)(2). PAGE 7 OF 15 Case No. 2026-P-0009 of the trial court proceedings as well as the validity of its judgment.” Kistler v. Kistler, 2004-Ohio-2309, ¶ 23 (11th Dist.). {¶31} Wife’s first and second assignments of error challenge the manifest weight of the evidence and the trial court’s failure to consider “relevant” evidence. These arguments necessarily fail due to the lack of transcripts. {¶32} In addition, Wife’s merit brief fails to comply with App.R. 16. See App.R. 16(A)(7) (appellant’s brief shall include “[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to authorities, statutes, and parts of the record on which appellant relies”). “The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).” App.R. 12(A)(2). See also J&S Motors, L.L.C. v. Hendking, 2025-Ohio-2925, ¶ 23 (11th Dist.); Estate of Andolsek, 2025-Ohio-5286, ¶ 16 (11th Dist.). {¶33} In light of the incomplete record and improper briefing before us, we are restrained to review the remaining assignments of error solely for errors of law in the trial court’s decision. Child Custody {¶34} Wife raises several issues regarding the trial court’s child custody findings in her third, fourth, fifth, and sixth assignments of error, which we consider jointly for ease of discussion. More specifically, Wife contends the trial court erred by (1) misinterpreting the parties’ temporary custody agreement as evidence of “long-term” custody; (2) failing to properly evaluate police reports and evidence of domestic abuse and coercive control in its best interest analysis pursuant to R.C. 3109.04(F)(1)(h); (3) making an improper PAGE 8 OF 15 Case No. 2026-P-0009 best interest determination; and (4) failing to consider the full timeline of the parties’ marriage. {¶35} “This court has held that decisions involving the custody of children are accorded great deference on review.” In re K.R., 2011-Ohio-1454, ¶ 28 (11th Dist.), citing Miller v. Miller, 37 Ohio St.3d 71, 74 (1998). “Thus, any judgment of the trial court involving the allocation of parental rights and responsibilities will not be disturbed absent a showing of an abuse of discretion.” Id. An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010- Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004). {¶36} The highly deferential abuse of discretion standard is particularly appropriate when reviewing the allocation of parental rights and responsibilities since the trial judge is in the best position to determine the credibility of the witnesses, see In re K.R. at ¶ 30, and there “‘may be much that is evident in the parties’ demeanor and attitude that does not translate well to the record,’” id., quoting Wyatt v. Wyatt, 2005-Ohio-2365, ¶ 13 (11th Dist.). A reviewing court is not to reweigh the evidence, “‘but must ascertain from the record whether there is some competent evidence to sustain the findings of the trial court.’” Id., quoting Clyborn v. Clyborn, 93 Ohio App.3d 192, 196 (3d Dist.1994). {¶37} The factors identified in R.C. 3109.04(F)(1) are as follows: (a) The wishes of the child’s parents regarding the child’s care; (b) If the court has interviewed the child in chambers . . ., the wishes and concerns of the child, as expressed to the court; (c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest; (d) The child’s adjustment to the child’s home, school, and community; PAGE 9 OF 15 Case No. 2026-P-0009  (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (g) Whether either parent has failed to make all child support payments . . .; (h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; . . . and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused or a neglected child; (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is planning to establish a residence, outside this state. {¶38} A review of the trial court’s judgment entry reveals there is competent evidence supporting each factor as set forth in R.C. 3109.04(F)(1). There is nothing to support Wife’s blanket assertion that the trial court relied “on incorrect facts and ignored relevant evidence.” There were allegations of domestic abuse, but they were made by Husband against Wife. Specifically, as to Wife’s allegation of domestic abuse by Husband and the police reports she allegedly filed, the court found “[n]o evidence was presented to substantiate a finding that any of the above exists in this case.” In addition, the GAL confirmed there were no pending criminal charges against Husband despite Wife’s claims. {¶39} Under R.C. 3109.04(F)(1)(j), the court considered Wife’s desire to move to Maryland to attend Galludet University. The court found there were “no direct benefits to the children in relocating to Maryland,” because Wife does not have employment or family or friends there, and it is questionable whether she can provide a stable environment PAGE 10 OF 15 Case No. 2026-P-0009 having moved seven times during the parties’ marriage. The GAL reported the children wish to remain in Aurora, they are bonded to Husband’s immediate family members who live in the same household, the children “love” their school and do not want to relocate, and they love both of their parents. Further, the GAL recommended it was in the children’s best interests to remain in Aurora with Husband. {¶40} It is obvious from the sufficient detail in the trial court’s findings that it considered the timeline of the parties’ marriage and their custody arrangements for the past nine years. Further, there is no evidence the trial court improperly considered the temporary custody agreement “as evidence of long-term custody.” The court noted at the time of the temporary order, Wife was awarded supervised parenting time; however, based upon her own inaction and the supervising parenting center’s difficulty in securing the services of an interpreter, Wife was not able to exercise in-person parenting time until June 26, 2025. She has regularly exercised supervised parenting time since that date. After the post-trial hearing, the court found Wife had progressed and was ready for unsupervised parenting time. {¶41} In short, there is no error of law in the trial court’s judgment determining child custody. {¶42} Accordingly, Wife’s third, fourth, fifth, and sixth assignments of error are without merit. Due Process ADA Accommodation {¶43} In her seventh assignment of error, Wife states she is deaf and is entitled to meaningful access to the courts. She contends “the court must ensure full participation” and makes a sweeping conclusory assertion that the court’s “[f]ailure to provide effective access resulted in prejudice against Mother.” PAGE 11 OF 15 Case No. 2026-P-0009  {¶44} Pursuant to R.C. 2311.14(A)(1), “[w]henever because of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot readily understand or communicate, the court shall appoint a qualified interpreter to assist such person.” See also State v. Jama, 2010-Ohio-4739, ¶ 20 (10th Dist.) (a court must appoint a qualified interpreter for parties needing that assistance during legal proceedings pursuant to R.C. 2311.14(A)(1)). {¶45} Moreover, Evid.R. 604 addresses the use of interpreters, stating “[a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.” Evid.R. 604 mandates an interpreter must qualify as an expert, pursuant to Evid.R. 702. State v. Newcomb, 2004-Ohio-4099, ¶ 21 (10th Dist.). {¶46} Because Wife never objected to the court’s accommodations below, she has waived this error on appeal. See In re Beynenson, 2013-Ohio-341, ¶ 26 (11th Dist.) (failure to object to the interpreter’s performance at the hearing waived the argument on appeal), citing State v. Rivera, 99 Ohio App.3d 325, 332 (11th Dist.1994) (the appellant waived any error on appeal by failing to object, and there is nothing to suggest a problem existed with the interpreter). {¶47} In addition to having waived this argument on appeal, we also find Wife’s argument wholly disingenuous and unfounded. Further, she failed to demonstrate any failure of accommodation, much less resulting prejudice. In this case, the trial court reviewed the qualifications of both interpreters and the steps it had taken to ensure both parties had access to interpreters. The court noted Wife raised an issue regarding her communication with the GAL for the first time on July 2, 2025, the day after the GAL gave his preliminary recommendation, which was not in Wife’s favor. The court further PAGE 12 OF 15 Case No. 2026-P-0009 investigated Wife’s claims on the first date of trial where both parties acknowledged they could have requested an interpreter for any of their meetings with the GAL. In the abundance of caution, the court also recessed the divorce hearing to allow Wife to meet with the GAL and both interpreters. The following day, Wife expressed that she was “satisfied” and “happy” with the accommodation the court provided, and she was content for trial to continue. Wife did not raise any further objections. {¶48} Accordingly, Wife’s seventh assignment of error is not well taken. Financial Orders {¶49} Lastly, in her eighth assignment of error, Wife contends the trial court’s “financial orders are inequitable.” Wife then asserts three contentions in bullet form: “father’s refusal to support the family,” “mother’s financial hardship,” and “impact of abuse and instability.” {¶50} We are quite limited in our review of this final assignment of error, and we can find no error of law in either the trial court’s finding that no spousal support should be awarded or in the trial court’s computation of Wife’s child support obligation under the child support computation worksheet set forth in R.C. Chapter 3119. {¶51} The trial court thoroughly reviewed the factors set forth in R.C. 3105.18(C)(1) in determining spousal support for either party is neither appropriate nor reasonable. The parties have individually supported themselves for the past five years, and Wife’s earned income combined with her social security disability benefits exceeds Husband’s earned income by $6,320.00 annually. The court further found Wife did not present sufficient evidence to support an award of spousal support and Husband did not assert a spousal support claim against Wife. PAGE 13 OF 15 Case No. 2026-P-0009  {¶52} In regard to child support, the trial court reviewed the child support computation worksheet and attached it to the final judgment entry. The court included its findings for a downward deviation from $580.65 to $500.00 per month ($250.00 per child) due to Wife’s costs associated with travel for parenting time and her limited financial resources. {¶53} Wife’s eighth assignment of error is not well taken. {¶54} The judgment of the Portage County Court of Common Pleas, Domestic Relations Division, is affirmed. JOHN J. EKLUND, J., EUGENE A. LUCCI, J., concur. PAGE 14 OF 15 Case No. 2026-P-0009  JUDGMENT ENTRY For the reasons stated in the opinion of this court, appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas, Domestic Relations Division, is affirmed. Appellant’s pending motions are dismissed as moot. Costs to be taxed against appellant. PRESIDING JUDGE MATT LYNCH JUDGE JOHN J. EKLUND, concurs JUDGE EUGENE A. LUCCI, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 15 OF 15 Case No. 2026-P-0009