Davidson v. Hodge

2023 Ohio 1638

• Court: Ohio Court of Appeals
• Decided: May 17, 2023
• Docket: C-220241
• Status: Published

Opinion

[Cite as Davidson v. Hodge, 2023-Ohio-1638.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ANGELA DAVIDSON, : APPEAL NO. C-220241 TRIAL NO. F20-573X Appellant, :

vs. :

MARK HODGE, : O P I N I O N.

Appellee. :

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 17, 2023

Law Offices of Nicholas A. Kulik, LLC, and Nicholas A. Kulik, for Appellant,

Eric L. Anderson, for Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Appellant Angela Davidson (“Mother”) challenges the juvenile court’s

order granting legal custody of her two children, K.H. and L.H., to appellee Mark

Hodge (“Father”).1 In two assignments of error, she contests the juvenile court’s

findings regarding two of the statutory factors guiding its analysis of the children’s

best interest under R.C. 3109.04(F)(1). But because the juvenile court’s findings are

supported by competent and credible evidence, we affirm its decision.

I. Facts and Procedure

{¶2} Mother and Father are the biological parents of K.H. and L.H. While

Mother and Father were never married, the four lived as a family in Ohio.

{¶3} In June 2020, Mother and Father were drinking and “got into a heated

argument” about relocating the family to Hawaii. The night culminated with Father

throwing a piece of furniture through a window. Following that argument, Mother

moved into her mother’s (“Maternal Grandmother”) home in Kentucky for a brief

period. Father moved for a preliminary injunction in the juvenile court to prevent the

children’s relocation. Days later, Mother moved to Hawaii with the children and

Maternal Grandmother.

{¶4} Months before she moved the children to Hawaii with Maternal

Grandmother, Mother had purchased four one-way airplane tickets to Hawaii. And

one month before the move, Mother signed a lease for an apartment in Hawaii with a

move-in date of June 15. Father’s name was not on the lease.

1We take this opportunity to remind all parties that App.R. 16(A)(6) and (D) require a statement of facts with appropriate references to the record. And we have explained that “[t]o receive consideration on appeal, trial-court errors must be argued and supported by citation to the record.” Berger v. Wade, 1st Dist. Hamilton No. C-120863, 2014-Ohio-1262, ¶ 25. While this court could have refused to consider Mother’s arguments based solely on her failure to provide appropriate citations to the record, in the interest of fairness, we decide this case on the merits. 2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} When Mother returned to Cincinnati with the children for the holidays

in December 2020, Father unsuccessfully petitioned the juvenile court for emergency

custody of the children. But weeks later, the magistrate granted Father interim custody

of the children and ordered their return to Ohio. The children lived with Father

beginning in February 2021 and continued, through remote access, attending school

in Hawaii until the end of the school year.

{¶6} At a June 2021 custody hearing, the magistrate heard testimony from

Father, Mother, and their friends, family members, and neighbors. In addition, the

parties introduced pictures, videos, receipts, insurance cards, bank statements, text

messages, discovery responses, pay stubs, Mother’s lease, and a Niche.com evaluation

of K.H.’s elementary school in Hawaii. In January 2022, the magistrate ordered that

the children be placed in Mother’s legal custody. Father objected. The juvenile court

held oral arguments in April 2022 and the parties entered additional evidence into the

record, including supplemental testimony from Mother and Father. The following

month, the juvenile court held an in-camera interview with 11-year-old K.H.

{¶7} The juvenile court set aside the magistrate’s order as “not supported by

the evidence and not in accordance with the law.” The juvenile court considered the

best-interest factors set forth under R.C. 3109.04(F)(1) in a thorough analysis of the

facts of the case. While the juvenile court made clear that both parents are bonded

with the children and “appropriate and loving parents,” the juvenile court found that

several statutory factors weighed in favor of granting Father custody of the children.

{¶8} First, K.H. wanted to remain in Ohio with Father. See R.C.

3109.04(F)(1)(b). Relevant here, the court considered the children’s relationships and

found that 1.) the children’s friends and family remain in Ohio, 2.) the children have

no significant social connections in Hawaii, and 3.) the distance between the parents 3 OHIO FIRST DISTRICT COURT OF APPEALS

would hinder the children’s relationship with the noncustodial parent. See R.C.

3109.04(F)(1)(c). The juvenile court found that the children were well adjusted to their

home, school, and community in Ohio, and questioned whether the children had

adjusted to life in Hawaii due, in part, to the Covid-related closures and precautions.

See R.C. 3109.04(F)(1)(d). The juvenile court found that the children required no

adjustment to remain in Ohio but found that “the children would require an

adjustment to no longer living in the home they always had in Ohio as well as no longer

living with Father.” In addition, the juvenile court found that Mother relocated to

Hawaii, in part, because of its beauty and it was better suited to what she was looking

for in life. See R.C. 3109.04(F)(1)(j).

{¶9} Ultimately, the juvenile court concluded that remaining in Ohio with

Father was in the best interest of the children because Father offered stability and the

least amount of disruption to the children’s lives. The juvenile court awarded Father

legal custody of the children and granted Mother parenting time during the summer.

II. Law and Analysis

{¶10} Mother challenges the juvenile court’s custody award in two

assignments of error. Specifically, she argues that the juvenile court abused its

discretion when it concluded that awarding custody of the children to Father was in

the children’s best interest. In support of her argument, she disputes the juvenile

court’s analysis of two statutory factors in R.C. 3109.04(F).

{¶11} Custody decisions “are some of the most difficult and agonizing” that a

juvenile court must make, particularly when the decision concerns two loving parents,

as is the case here. See Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159

(1997). The juvenile court exercises broad discretion when allocating parental rights

and responsibilities in a custody dispute. Owens v. Owens, 1st Dist. Hamilton No. C- 4 OHIO FIRST DISTRICT COURT OF APPEALS

210488, 2022-Ohio-3450, ¶ 31, citing Cwik v. Cwik, 1st Dist. Hamilton No. C-090843,

2011-Ohio-463, ¶ 41, citing Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846

(1988). Our review is highly deferential in light of the juvenile court’s discretionary

authority, the nature of the proceeding, and the intimate knowledge gained by

observing the witnesses and parties. Id., quoting Cwik at ¶ 41, quoting Miller at 74.

Because the juvenile court has “the best opportunity to view the demeanor, attitude,

and credibility of each witness,” we presume that its findings are correct. Bohannon v.

Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-2398, ¶ 15,

quoting Davis at 418.

{¶12} We therefore review the juvenile court’s decision for an abuse of

discretion. Id. at ¶ 14. A juvenile court abuses its discretion when its decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). While we review for an abuse of discretion, we may

not simply substitute our judgment for the juvenile court’s even if we would have

reached a different conclusion regarding the children’s best interest. Berk v.

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

{¶13} In Ohio, a child’s best interest is paramount when a court determines

custody matters and allocates parental rights and responsibilities. See R.C.

3109.04(A)(1). To determine the best interest of the children, the juvenile court must

consider a nonexhaustive list of statutory factors in R.C. 3109.04(F)(1). R.C.

3109.04(B)(1).

{¶14} Mother does not contest that the juvenile court carefully considered,

and thoroughly analyzed, the relevant statutory factors. Instead, she contests two of

the juvenile court’s findings under two best-interest factors in R.C. 3109.04(F)(1). In

Mother’s view, the juvenile court’s analysis of the children’s interactions and 5 OHIO FIRST DISTRICT COURT OF APPEALS

interrelationships under R.C. 3109.04(F)(1)(c) is unreasonable and lacks evidentiary

support. Next, she disputes the juvenile court’s conclusion under R.C.

3109.04(F)(1)(d) that the children were not adjusted to their home, school, and

community in Hawaii.

Children’s Interactions and Interrelationships

{¶15} The juvenile court must consider the “child[ren]’s interaction[s] and

interrelationship[s] with [their] parents, siblings, and any other person who may

significantly affect the[ir] best interest.” R.C. 3109.04(F)(1)(c). The juvenile court

made several factual findings in its lengthy analysis of the children’s interactions and

interrelationships. Mother does not dispute that the children have numerous family

members and friends in Ohio, where they have lived for most of their lives. Rather,

Mother challenges three findings by the juvenile court, which suggest that the

children’s interactions and interrelationships are stronger in Ohio than in Hawaii. To

that end, she claims the juvenile court’s findings lack evidentiary support and are the

product of an unsound reasoning process.

{¶16} First, Mother disputes the juvenile court’s determination that “[b]oth

parents were actively involved in raising the children.” The court explained that while

Mother took on a greater share of the childcare responsibilities, “Father was the

primary financial provider for the family and Mother had more time available to care

for the children at times.” Mother disagrees and asserts that she was the primary

caretaker and at times the sole caretaker, as well as the primary financial provider for

the children. But long-time family friends testified that Father has always been a

hands-on and active parent to the children, who adore him. Long-time neighbors in

Ohio described Father as a patient and good parent and recalled consistently seeing

6 OHIO FIRST DISTRICT COURT OF APPEALS

him with the children in the yard. And according to the children’s paternal

grandmother, Father was actively involved in the children’s care.

{¶17} Father stated that Mother “always took care of the medical

appointments” and carried the children’s health insurance. And Mother testified that

she was responsible for morning and nighttime childcare after K.H.’s birth. But she

also testified that Father assisted with childcare at times and was the sole financial

provider following L.H.’s birth. And according to Mother’s testimony, Father covered

childcare costs after Mother returned to work and would assist in dropping L.H. off at

daycare. Likewise, Maternal Grandmother testified that Father transported the

children to her house in Northern Kentucky when Mother worked. Even Mother’s

long-time friend testified that Father is “really good, hands-on with [the children].” In

sum, the evidence makes clear that both parents provided for the care of the children.

Therefore, this finding is supported by competent and credible evidence.

{¶18} Second, Mother disputes the juvenile court’s finding that “[t]he

children do not have any known social connections in Hawaii that are of significance,

though they have some familiarity with some of Mother’s friends.” She claims that the

children started to develop meaningful relationships in Hawaii. Yet, Mother testified

that K.H. was frustrated that there were no girls in their Hawaii neighborhood to play

with and “unfortunately didn’t have the opportunity to--she did have a good friend in

school but didn’t get an opportunity to fully interact with them because of the

pandemic.” And we note that K.H. and L.H. might possibly develop lasting friendships

and relationships in Hawaii. But numerous witnesses described their many existing

friendships in Ohio, including K.H. in her in-camera interview. More to the point,

“[the] child[ren]’s best interest for allocating rights and responsibilities is based on

7 OHIO FIRST DISTRICT COURT OF APPEALS

present circumstances, not on what possibly may happen in the future.” Seibert v.

Seibert, 66 Ohio App.3d 342, 584 N.E.2d 41 (12th Dist.1990).

{¶19} Third, Mother disagrees with the juvenile court’s conclusion that, “[I]f

the parties remain where they presently are, the children will not be able to maintain

as close of a relationship with the other parent, regardless of who receives custody, due

to the physical distance involved.” Again, the evidence supports the juvenile court’s

finding. The children’s paternal grandmother testified that “there was such a small

window of opportunity to connect” with the children when they were living in Hawaii

due to the time change. Likewise, Father described how the geographic and time

distances limited his ability to communicate with the children in Hawaii.

{¶20} All told, the juvenile court’s findings and analysis of the children’s

interrelationships and interactions under R.C. 3109.04(F)(1)(c) are supported by

competent and credible evidence in the record. Thus, the juvenile court’s findings do

not constitute an abuse of discretion. We overrule Mother’s first assignment of error.

The Children Were Adjusted To Life In Ohio

{¶21} In her second assignment of error, Mother disagrees with the juvenile

court’s findings regarding the children’s adjustments to their home, school, and

community under R.C. 3109.04(F)(1)(d). The juvenile court analyzed the children’s

experiences in both Ohio and Hawaii and concluded that remaining in Ohio required

less adjustment for the children. Mother disagrees.

{¶22} Beginning with the children’s adjustment to school, the juvenile court

found that K.H. was well adjusted to school and the community in Ohio, and that L.H.

was not school aged when he lived in Hawaii. In particular, the juvenile court found

that while K.H. performed better at her Hawaiian elementary school, “[T]here were

questions related to the quality of education she was receiving and if she was being 8 OHIO FIRST DISTRICT COURT OF APPEALS

challenged equally when comparing the Ohio and Hawaii schools.” Mother claims that

there was no evidence of the quality of curriculum or instruction in Hawaii. But in her

in-camera interview, K.H. informed the juvenile court that she was “relearning the

basics of like first grade and second grade,” specifically money and counting. And K.H.

preferred attending a more challenging school in Ohio. Still more, Mother described

K.H.’s elementary school in Hawaii as “a bit lower rated” and “not as good as the school

that they were enrolled in [Ohio].” Mother’s own testimony refutes her claim that the

juvenile court’s findings lack evidentiary support.

{¶23} Turning to the children’s adjustment to the community, the juvenile

court found that, in Ohio, the children “routinely played with a network of friends”

and participated in extracurricular activities. In contrast, the juvenile court found that

the children “have not adjusted to their school and community in Hawaii.” The

juvenile court acknowledged that while the children “did not require an adjustment to

living with Mother and Maternal Grandmother,” the children would have to adjust to

no longer living with Father in Ohio and “appeared to miss certain people that were

no longer able to be a routine part of their lives while they were in Hawaii.” Once again,

we need to look no further than Mother’s own testimony, who stated that K.H. missed

Father when she was in Hawaii. And K.H.’s paternal grandmother described her as

“sad and withdrawn” in Hawaii.

{¶24} While Mother acknowledges that relocating to Hawaii would require

some adjustment by the children, she argues that the court failed to consider the

children’s adjustment upon returning to Ohio without Mother. But the juvenile court

recognized that living in Ohio with Father without Mother and Maternal Grandmother

would be an adjustment for the children but noted that the children “appear to be

doing well” following their return to Ohio. 9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶25} Finally, Mother contends that the juvenile court ignored the possible

benefits of living in Hawaii. Specifically, she emphasizes the importance of

experiencing diverse environments and cultures during the children’s formative years.

Diversity and cultural experiences may assist with the development of a child’s

character. But we cannot ignore the countervailing facts and statutory factors

supporting the juvenile court’s conclusion that granting Father custody of the children

was in their best interest. Plus, no one statutory factor controls the juvenile court’s

best-interest determination. In re L.L., 1st Dist. Hamilton No. C-200058, 2020-Ohio-

5609, ¶ 8. And we have explained that “the weight to be given to any factor lies within

the trial court’s discretion.” Id. Therefore, we find no abuse of discretion and overrule

Mother’s second assignment of error.

III. Conclusion

{¶26} We overrule Mother’s two assignments of error and affirm the juvenile

court’s judgment.

Judgment affirmed.

ZAYAS, P.J., and KINSLEY, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.