Davis v. Davis

563 N.E.2d 320, 55 Ohio App. 3d 196, 1988 Ohio App. LEXIS 4117
CourtOhio Court of Appeals
DecidedOctober 24, 1988
Docket55251 and 54444
StatusPublished
Cited by29 cases

This text of 563 N.E.2d 320 (Davis v. Davis) 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
Davis v. Davis, 563 N.E.2d 320, 55 Ohio App. 3d 196, 1988 Ohio App. LEXIS 4117 (Ohio Ct. App. 1988).

Opinion

Markus, J.

Nearly five years after the parties’ divorce, the trial court terminated the father’s visitation rights with his eight-year-old son and his child support obligations. The father and the mother both appeal. The father challenges the termination of visitation. The mother contests the termination of child support. We hold that the court lacked sufficient justification for either of those orders, so we reverse them and remand for further proceedings.

Both the father and the mother also complain that the court effectively denied their requests for attorney fees, and ordered them to compensate the child’s guardian ad litem. Additionally, the mother disputes the court’s requirement that she post security to stay the judgment for the guardian’s fees pending this appeal. None of these contentions has merit.

I

The court’s divorce decree granted the mother custody of the couple’s only child with visitation for the father at “reasonable hours and intervals.” It ordered him to pay the mother for the child’s necessary medical expenses and $30 weekly as child support. Presumably because the mother earned as much as the father or more, the decree divided the marital property without ordering any sustenance alimony. The father received the marital residence, with an obligation to pay the mother $3,500 in $100 monthly installments.

Apparently both parties promptly began to violate the divorce decree. The father failed to make regular child support payments or any of the property installments. The mother failed to afford the child regular visitation with the father. Five months after the divorce, the court established a specific visitation schedule. Seven months thereafter the court concluded that the *197 mother had denied the child any visitation with the father since its last order. Consequently, it abated the father’s support obligation until the mother afforded that visitation.

The court’s referee later conducted hearings on the father’s motion to hold the mother in contempt for refusing to permit visitation, and the mother’s motion to reinstate child support. Approximately twenty months after their divorce, the parties agreed upon a judgment which supposedly resolved their differences. When they failed to comply with that judgment, the court subsequently vacated it.

Thereafter, the court’s referee reopened hearings on prior and subsequent motions. The referee summarized the evidence and his findings in a thirty-three-page report, which he supplemented with another nine-page report and supporting exhibits. The court overruled the parties’ objections to the referee’s report and accepted his recommendations in its judgment.

In substance, each party denied any breach of his or her own obligations until the other breached the court’s orders. Each party also claimed that the other retaliated by seeking further rights whenever he or she sought to enforce the court’s orders.

When the parties first separated, the child was two years old. The father did not attempt to visit the child for approximately one year. He asserted that he acted in the child’s best interests in light of the animosity between his former wife and himself. She claimed that he lacked interest in the child. The father sought visitation when the child was three years old. During the next three or four months, the child had several visits with the father. No further visitation occurred.

The father sought to show that the mother subtly discouraged the child from visiting him and conditioned the child to hate him. In fact, the child resisted some of the visits. The mother regularly dressed the child for his visits with the father in the same red jacket and shoes, which the child strongly disliked. On one occasion, the mother reportedly interrupted the child’s successful visit with the father by coming to the home where the father took the child. A woman who worked in the same building as the mother testified that the mother told her she would never permit the child’s visitation with the father. The mother denied that conversation.

The mother asserted that she never tried to prevent visitation. She sought to show that the father had no real affection for the child. He had not sent the child a birthday or Christmas present after the divorce. She also contended that the father neglected the child on some earlier visits and that later visits caused the child great emotional distress. Several witnesses described changes in the child’s behavior when the father resumed visitation, which coincided with the time when the child began preschool classes.

There was no evidence that the father ever willfully injured the child. The child sometimes came home with his pants wet. On one occasion the father reportedly failed to administer the child’s medication for an ear infection. On another occasion, the child burned his hand during a visit, by touching a hot radiator. Though the minor burn required some attention, it left no residual damage. The mother asserted, and the father denied, that several years before the divorce the father shot her pet dogs and endangered some strangers with a boat.

A trained social worker from the court’s family conciliation service testified about her multiple interviews with each parent and the child. She saw them several times in the first two years after the divorce. She concluded *198 that the mother preferred no visitation for the child with the father. The father’s efforts to visit the child had been largely unsuccessful. The father did not have a good relationship with the child, but the two interacted favorably during interviews. After the visitations ended, the child believed that his father was dead.

The social worker recommended that the child should visit with the father, initially under the supervision of a trained mental health professional. She expressed her expert opinion that those meetings should occur weekly in a neutral place.

Four years after the divorce, a psychiatrist for the court’s conciliation service interviewed the parties and the child. By agreement, the psychiatrist’s written report was admitted as an exhibit. The child was then age seven and a second grade student. He had no visitation with his father in the preceding three years.

The psychiatrist reported that the child recognized his father and called him by his nickname. The child “interacted warmly and spontaneously” with this father when they were together. Privately, the child told the psychiatrist that he did not want to visit his father because it was “boring.” The mother “was a highly anxious woman” who expressed strong opposition to visitation, particularly if it is not supervised. The father “was a stern man” who described a “legal standoff” which denied him visitation but eliminated his need to support the child.

The referee concluded that further efforts to compel visitation would be futile or harmful. He found that the mother was determined to obstruct visitation, even though it created no danger to the child’s physical, emotional, or moral welfare. He further found that the father lacked sufficient interest in visitation to participate regularly and consistently, even if the court coerced the mother’s cooperation.

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Bluebook (online)
563 N.E.2d 320, 55 Ohio App. 3d 196, 1988 Ohio App. LEXIS 4117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-davis-ohioctapp-1988.