Berry v. Berry

2 Ohio App. Unrep. 673
CourtOhio Court of Appeals
DecidedMarch 12, 1990
DocketCase No. CA88-11-081
StatusPublished

This text of 2 Ohio App. Unrep. 673 (Berry v. Berry) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Berry, 2 Ohio App. Unrep. 673 (Ohio Ct. App. 1990).

Opinions

JONES, P.J.

Plaintiff-appellant, Darlene Berry, and defendant-appellee, Michael Berry, were married on May 25, 1982. One child, Zachary, was born issue of the marriage on September 1, 1985. On September 23, 1987, appellant filed a complaint for divorce. Following separate hearings on the issues of child custody and property division, the trial court granted appellant a divorce on the grounds of gross neglect of duty. In addition, the court awarded custody of the minor child to appellee and equally divided the parties' property. The court denied appellant's post-decree motion for a new trial or, in the alternative, relief from judgment. Appellant timely appeals and submits the following assignments of error for review:

First Assignment of Error

"The decision of the trial court awarding custody to the defendant/appellee was contrary to law, against the manifest weight of the evidence and an abuse of the trial court's discretion."

Second Assignment of Error

"The trial court erred as a matter of law by sustaining defendant/appellee's objection to plaintiff/appellant's proposed testimony concerning prior inconsistent statements made by Tom Englehart concerning his wife Leslie Englehart."

Third Assignment of Error

"The trial court abused its discretion by awarding the defendant/appellee approximately one-half of the post tax proceeds from the sale of the plaintiff/appellant's business."

Fourth Assignment of Error

"The trial court erred as a matter of law in overruling plaintiff/appellant's motion for new trial which was based upon defendant/appellee's misrepresentations and/or lies."

I.

The trial court's custody award is the subject or appellant's first assignment of error. Appellant cites two reasons in support of her claim that the custody award was erroneous: first, the court failed to properly consider all relevant statutory factors under R.C. 3109.04; second, the facts and law did not support the court's finding that appellee was the child's primary caretaker. In its judgment entry and decree of divorce, the trial court made the following finding regarding the custody question:

"The court finds that the credible evidence established that plaintiff (wife) had an ' affair' about one (1) or two (2) years ago. Defendant (husband) began a relationship with another party. Eventually this state of affairs led to defendant (husband) moving out of the marital residence. He took up residence with his new girlfriend who is still married. Subsequent to these events, plaintiff revived her relationship with her former fiance who now comes to the marital residence to spend every weekend with the plaintiff. Each party introduced exhibits which were photographs showing themselves and current companion with the child. Both plaintiff and defendant testified that they intended to marry their respective companions immediately after this divorce is final. From the credible testimony adduced, the two-year-old child has not yet been adversely affected by either of the parties' current relationships.

"At the July 22, 1988 hearing, the plaintiff (mother) testified that she intended to move to Texas after the finalization of this proceeding. At the hearing on August 23, 1988, the plaintiff's attorney indicated that plaintiff was not now going to move to Texas until this case is resolved. No testimony was produced to support this representation.

"The court further finds that based upon the credible evidence presented, the child and the father have a very good relationship and a close bond exists between them. Also from the evidence presented, it is evident that the child and mother have a good relationship. Both parties enjoyed and performed their roles as caregivers. The testimony revealed that the [675]*675plaintiff (wife) would fix the evening meal while the defendant (father) would feed, bathe and prepare the child for bed.

"The court appointed psychologist testified that both parents would be and are fit parents. The psychologist'sreport indicated some concern that the plaintiff (wife), if she were to obtain custody, would make it difficult for the husband to visit with his son. The psychologist noted that the plaintiff is a high energy person, and that she has an intense bitterness and general aggressivity which creates a vindictive attitude toward husband and affects her judgment regarding decisions in her personal life. The psychologist'sreport on the defendant found him to be more passive, in general, and less bitter.

"Both parents seek custody of their son. The defendant's girlfriend was described as a 35 year old woman who has been married and divorced three our four times since her 21st birthday. She was not called by either party to testify at any hearing. The plaintiffs boyfriend is a very successful, upwardly mobile businessperson who has recently been transferred to Texas. Plaintiff (wife) is concerned that defendant's girlfriend will move into the former marital residence if husband is awarded custody and be a disruptive influence on the child. No evidence was addressed to support this allegation; all present indication, as previously mentioned, shows no adverse effect on the child.

"Several of the child's extended family members reside in this area.

"The psychologist's concerns about the plaintiff's temperament was corroborated by other evidence. For example, since separation, when husband reduced his work week to four (4) days to have more time with his son, wife refused to allow him additional visitation without offering a valid reason. The court ordered pendente lite visitation order was rigidly adhered to by plaintiff.

"The plaintiff (wife) is an active, career-oriented person and has always held a full-time job during the six years of the marriage. She intends to complete college and then attend law school.

"Defendant (husband) is a self-employed builder/carpenter who works out of his house and has a flexible work schedule.

"Based on all the credible evidence presented and the demeanor of the witnesses, the court finds that the defendant (father) was the primary caretaker of the child during the marriage. Though both parties cared for the child, the father provided for the remedial needs of the child and his flexible work schedule permitted him to spend more time with the child than the mother did. The court also finds that the close bond between the father and the son would be disturbed if custody of the child was granted to the mother. Therefore, the court finds that it is in the best interest of the child to grant custody to the defendant (father)."

A.

With respect to substantive matters, the issue of child custody in a divorce action is wholly governed by R.C. 3109.04, which reads, in part, as follows:

"(A) Upon hearing the testimony of either or both parents and in accordance with sections 3109.21 to 3109.36 of the Revised Code, the court shall decide to whom the care, custody, and control of the children shall be given. The court may grant the care, custody, and control of the children to either parent ***. The court shall take into account that which would be in the best interest of the children ***.

"(C) In determining the best interest of a child pursuant to this section, whether on an original award of custody or modification of custody, the court shall consider all relevant factors, including:

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Bluebook (online)
2 Ohio App. Unrep. 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-berry-ohioctapp-1990.