[Cite as Davis v. Davis, 2012-Ohio-418.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
NEAL DAVIS : : Appellate Case No. 2011-CA-71 Plaintiff-Appellee : : Trial Court Case No. 10-DR-738 v. : : ELLEN DAVIS : (Civil Appeal from Common Pleas : (Court, Domestic Relations) Defendant-Appellant : : ..........
OPINION
Rendered on the 3rd day of February , 2012.
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JON A. DOUGHTY, Atty. Reg. #0024869, 39 North Fountain Avenue, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
ELIZABETH J. HENLEY, Atty. Reg. #0034207, Talbott Tower, Suite 1205, 131 North Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Ellen Davis appeals from the trial court’s final judgment entry and divorce decree that
among other things divided the parties’ property and designated appellee Neal Davis as legal
custodian and residential parent of their children. 2
{¶ 2} Ellen advances five assignments of error on appeal.1 First, she contends the trial court
erred in its custody determination by giving insufficient weight to her role as primary caretaker of the
children. Second, she claims the trial court abused its discretion in designating Neal as legal custodian
and residential parent. Third, she asserts that the trial court erred by finding her solely responsible for
repaying a loan from her sister. Fourth, she argues that the trial court erred by using the final hearing
date as the marriage termination date. Fifth, she maintains that the trial court erred by making her
liable for half of any mortgage and property-tax deficiency.
{¶ 3} The record reflects that the parties married in 1998. They had four children
together. The children were born in 1998, 2000, 2002, and 2004. After discovering that Neal had
engaged in a lengthy affair, Ellen moved to New York and began a new job there. Neal remained
in Ohio with the parties’ children.2 He filed for divorce in July 2010 and obtained temporary
custody of the children. The matter proceeded to a two-day final hearing before a magistrate on
March 28, 2011, and May 3, 2011. Following the hearing, the magistrate filed a May 16, 2011
judgment entry and divorce decree. The magistrate named Neal as the legal custodian and
residential parent of the children and awarded Ellen visitation. The magistrate also ordered the
marital residence, which had negative equity of $44,000, to “go into foreclosure.” It further
ordered the parties to share equal responsibility for any mortgage deficiency and delinquent
real-estate taxes. In addition, the magistrate found that Ellen had agreed to be responsible for
repaying a $10,000 loan from her sister. Finally, the magistrate resolved numerous other issues
1 For purposes of clarity, we will refer to the parties by their first names. 2 The circumstances surrounding Ellen’s move to New York and Neal’s residence in Ohio are disputed and will be addressed more fully infra. 3
that are not relevant to this appeal.
{¶ 4} Ellen filed objections and supplemental objections to the magistrate’s ruling. She
challenged, inter alia, the magistrate’s custody determination, the finding that the parties should
share responsibility for any mortgage deficiency and delinquent real-estate taxes, and the finding
that she was responsible for repaying the $10,000 loan from her sister. The trial court sustained
Ellen’s objections in part, and overruled them in part, in an August 29, 2011 ruling. The trial court
overruled the objections insofar as they related to Neal’s designation as legal custodian and
residential parent. The trial court also overruled the objections insofar as they addressed liability
for back real-estate taxes and Ellen’s obligation to repay the loan from her sister. This appeal
followed.
{¶ 5} In her first assignment of error, Ellen contends the trial court erred by giving
insufficient consideration to her role as primary caretaker of the children. In support, Ellen cites
evidence that she bore primary responsibility for the day-to-day supervision and care of the
parties’ children while she and Neal were together. Ellen argues that the trial court failed to give
this evidence “the proper weight that it deserved.”
{¶ 6} Although the record supports Ellen’s claim that she served as the primary caretaker
of the children when she resided with Neal, her argument about the proper weight of that evidence
is unpersuasive. On appeal, Ellen stops short of claiming that a primary caretaker has an absolute
right to be designated as legal custodian and residential parent. Relying on a 1982 opinion from
this court, however, she does assert that “‘where one parent can demonstrate with regard to a
child of tender years that he or she is clearly the primary caretaker parent, then the court must
further determine only whether the primary caretaker is a fit parent.’” In re Maxwell, 8 Ohio 4
App.3d 302, 306, 456 N.E.2d 1218 (2d Dist.1982), quoting Garska v. McCoy, 278 S.E.2d 357,
363 (W.Va.1981). Because she had served as the primary caretaker for the parties’ children and
was a fit parent, Ellen reasons that the trial court should have designated her as legal custodian
and residential parent. (See Appellant’s brief at 2-4).
{¶ 7} We disagree. The record reflects that the magistrate and the trial court both took
into consideration the fact that Ellen had served as primary caretaker before her move to New
York. The magistrate and the trial court also considered the fact that Neal began serving as the
primary caretaker after Ellen’s move to New York. At the time of the trial court’s final judgment
and divorce decree, Neal had served as the primary caretaker for more than nine months. The
weight to be given to the parties’ respective periods of time as primary caretaker was a matter for
the trial court to decide in the exercise of its discretion. Contrary to Ellen’s argument on appeal,
her role as primary caretaker while residing with Neal was not necessarily entitled to “extra”
weight.
{¶ 8} To be sure, “[t]he primary caregiver of a child is an important factor to be
considered in the initial allocation of parental rights.” Chelman v. Chelman, 2d. Dist. Greene
App. No. 2007 CA 79, 2008-Ohio-4634, ¶ 43, citing Maxwell. “However, a party’s role as the
primary caregiver is not given presumptive weight over other relevant factors.” Id. at ¶ 43. Where,
as in the present case, both parents have served as primary caregiver at different times, a trial court
has discretion to designate the father as legal custodian and residential parent if other evidence
preponderates in his favor regarding the best interest of the children. Williams-Booker v. Booker,
2d Dist. Montgomery App. Nos. 21752, 21767, 2007-Ohio-4717, ¶ 13-16.
{¶ 9} In the present case, the trial court gave adequate consideration to Ellen’s role as 5
primary caregiver. It simply found that Neal had filled the same role and that the best interest of
the children would be served by designating him as legal custodian and residential parent.
Because the trial court did not fail to give proper consideration to Ellen’s role as primary
caregiver, her first assignment of error is overruled.
{¶ 10} In her second assignment of error, Ellen claims the trial court abused its discretion
in designating Neal as legal custodian and residential parent. In support of her argument, Ellen
challenges the trial court’s assessment of the statutory best-interest factors applicable to custody
determinations. Ellen argues that the only factor weighing against her was “her move, or desire to
move, to New York.” She asserts that the trial court abused its discretion by denying her custody
based on her non-residence, or potential non-residence, in Ohio.
{¶ 11} “When custody has never been litigated, the parties stand on equal footing
regarding allocation of parental rights and responsibilities. (Citations omitted). Brewer v.
Brewer, 2d Dist. Darke App. No. 2010 CA 17, 2011-Ohio-1275, ¶ 26. “The child's best interest
is the sole issue, and it is evaluated using the non-exclusive list of factors set forth in R.C.
3109.04(F)(1).” Id. These factors “relate primarily to the health and well being of the child and the
parents.” Meyer v. Anderson, 2d Dist. Miami App. No. 01 CA53, 2002-Ohio-2782. Although a
trial court is required to consider these factors, it retains broad discretion in making a best-interest
determination. Id. We review its determination for an abuse of that discretion. In re D.W., 2d Dist.
Montgomery App. No. 21630, 2007-Ohio-431, ¶ 13.
{¶ 12} In the present case, the magistrate addressed the R.C. 3109.04(F)(1) best-interest
factors in some detail. (Doc. #65 at 4-10). The magistrate’s written decision demonstrates that
those factors did not weigh heavily in either party’s favor. Despite the parties’ complaints about 6
one another, the magistrate’s findings suggest that either parent could care for the children.
Although Ellen had been the primary caretaker, the magistrate noted that Neal more recently had
served in that capacity. On appeal, Ellen suggests that Neal obtained temporary custody of the
children, and sole occupancy of the marital residence, through deception. She contends he agreed
to move to New York with her. Shortly after their arrival, she claims he snuck the children back to
Ohio and filed for divorce, leaving her abandoned in New York and waiting for him to return.
Ellen argues that this behavior militates against awarding Neal legal custody.
{¶ 13} Although Ellen’s hearing testimony is consistent with her version of events, Neal
told a different story. He testified that the parties took a trip to New York that was supposed to be
a two-week vacation. According to Neal, however, Ellen refused to return to Ohio and declared
that she was staying in New York and keeping the children with her. Feeling that he had been
misled, and believing that he had no other option, Neal explained that he returned to Ohio with the
children and filed for divorce. The magistrate addressed the issue in his decision, finding Neal’s
story the most credible. The magistrate explained:
{¶ 14} It is noted that before this trip [to New York] Ellen had her mail forwarded.
However, none of the utilities at the marital residence were disconnected, the marital residence
was not listed for sale, they did not pack more than that necessary for two weeks and none of the
children’s school records were forwarded to Rochester.
{¶ 15} * * *
{¶ 16} It looks to this trier of fact like the parties before the trip had contemplated and
discussed a move to Rochester. However, Ellen, once in New York basically forced the issue by
making a unilateral decision to remain in New York with the children. So basically Neal could 7
take it or leave it. He left. (Doc. #65 at 10).
{¶ 17} The magistrate expressed “great concern” about Ellen having made “a unilateral
decision to relocate children whom have lived their whole life in Ohio.” (Id.). Although Ellen
disputes Neal’s version of events, the record contains evidence supporting the magistrate’s
findings, with which the trial court agreed. Contrary to Ellen’s argument on appeal, her decision
or desire to move to New York was not the only best-interest factor supporting the magistrate’s
and the trial court’s decision.
{¶ 18} Ellen complains about the condition of the marital residence after she moved out,
but the magistrate found that it had been cluttered during her occupancy. This finding is supported
by hearing testimony that neither party was a good housekeeper. Ellen’s evidence did not compel
a finding that living conditions were so poor under Neal’s control that they posed a health or
safety hazard to the children and required an award of custody to her. Notably, one of Ellen’s
witnesses, who testified about the disarray inside Neal’s home, acknowledged that she still
allowed him to watch her children at his house. We find no abuse of discretion in the trial court’s
treatment of this issue.
{¶ 19} Ellen also complains about the children’s school-attendance record. The magistrate
and the trial court took that record into account, along with the children’s generally positive
academic performance, behavioral records, and extracurricular activities. Once again, we see no
abuse of discretion in the trial court’s evaluation of this issue.
{¶ 20} Ellen further asserts that Neal had failed to facilitate her visitation and contact with
the children when he had temporary custody. Although this may be true, the magistrate found that
the relationship between the parties was strained and that neither party appeared committed to 8
honoring visitation. This factual determination, with which the trial court agreed, is not an abuse
of discretion. The record contains evidence that Ellen was “nasty” during visitation exchanges and
told Neal, in the presence of the children, that she wished he would die.
{¶ 21} In short, the record reveals that the magistrate considered each of the statutory
best-interest factors and made findings about them. The magistrate then opined: “[A]fter
considering the statutory factors and the facts * * * along with the evidence submitted on Ellen
and Neal’s parenting skills, the relative strengths and weaknesses of each of the parents, and after
placing the appropriate weight upon each factor, under the circumstances it is determined by a
preponderance of the evidence that the children’s development and best interest would be better
served with Neal being designated as the legal custodian and residential parent.” (Doc. #65 at 11).
{¶ 22} For its part, the trial court properly considered each of Ellen’s objections regarding
the custody determination, reviewed the evidence de novo, and agreed with the magistrate that
designating Neal as legal custodian and residential parent was in the best interest of the children.
Based on our review of the record, we cannot say the trial court abused its discretion in reaching
that conclusion. Accordingly, Ellen’s second assignment of error is overruled.
{¶ 23} In her third assignment of error, Ellen asserts that the trial court erred by finding
her solely responsible for repaying the $10,000 loan from her sister. During the final hearing,
Ellen testified that she borrowed the money during the marriage to pay off marital debt on a
high-interest credit card.
{¶ 24} In his decision, the magistrate found that Ellen had agreed to be solely responsible
for repaying the loan. The magistrate based this finding on Ellen’s “yes” response when asked
whether she intended to repay the loan. (May 3, 2011 transcript at 17). The magistrate also found, 9
incorrectly, that Ellen had borrowed the money after the parties’ separation. In reality, she had
borrowed the money while the parties were residing together. For its part, the trial court
characterized the magistrate’s interpretation of Ellen’s affirmative response as “logical.” The trial
court then added: “Assuming, arguendo, that Ms. Davis’ intention was to request that Mr. Davis
contribute towards the payment of these monies, upon conducting a de novo review of the record
of these proceedings, the Court finds that it is not fair or equitable to obligate him to do so
anyway, based upon the totality of the credible evidence.” (Doc. #81 at 9).
{¶ 25} Upon review, we are unconvinced that Ellen’s affirmative response when asked
whether she intended to repay the loan meant that she consented to being solely responsible for
the debt. We find it more likely that Ellen simply meant the loan remained an outstanding
obligation that needed to be paid, along with the parties’ other debts. In any event, the trial court’s
alternative finding that Ellen alone should bear responsibility for the debt to her sister is not an
abuse of discretion. Although the trial court did not specify why it would be “inequitable” for
Neal to share in repaying the debt, the record contains evidence to support such a finding.
{¶ 26} The record reflects that Ellen deposited $9,600 of the borrowed money into a
savings account in her name only. (May 3, 2011 transcript at 74). She did so without mentioning
the deposit to Neal, who lacked any access to the account statements. (Id. at 73-74). Ellen testified
that she used the money to pay off a high-interest Bank of America card. (Id. at 16). She presented
no physical evidence, however, such as a monthly statement establishing that the Bank of America
credit-card debt existed or that she used the money to pay it off. Although the issue is perhaps a
close one, we cannot say the trial court abused its discretion in finding Ellen solely responsible for
repaying her sister. The third assignment of error is overruled. 10
{¶ 27} In her fourth assignment of error, Ellen argues that the trial court erred by using the
final hearing date as the marriage termination date. She contends the trial court should have used
the earlier date that Neal filed for divorce as the de facto termination date. Ellen claims the
termination date matters because Neal enjoyed exclusive occupancy of the marital residence
during the pendency of the divorce proceeding and failed to pay the mortgage or real-estate taxes.
Under these circumstances, Ellen reasons that the trial court should have used the date of the
divorce complaint as the de facto marriage termination date, making Neal solely responsible for
the mortgage deficiency and unpaid taxes.
{¶ 28} “R.C. 3105.171(A)(2) defines ‘during the marriage’ as the time from the date of
the marriage through the date of the final hearing. If the court finds that using either of these dates
would be inequitable, the court may select dates that it considers ‘equitable’ in determining
marital property.” Clemens v. Clemens, 2d Dist. Greene App. No. 07-CA-73, 2008-Ohio-4730, ¶
19. We review a trial court’s selection of a marriage termination date under R.C. 3105.171 for an
abuse of discretion. Id. at ¶ 18.
{¶ 29} In the present case, the magistrate adopted May 2, 2011, the last day of the final
hearing, as the marriage termination date. (Doc. #. 65 at 28). Ellen did not object to this aspect of
the magistrate’s decision, which the trial court adopted. Civ.R. 53(E)(3)(d) provides that “[a] party
shall not assign as error on appeal the court’s adoption of any finding of fact or conclusion of law
unless the party has objected to that finding or conclusion under this rule.” By failing to object
below, Ellen forfeited her argument regarding the marriage termination date. Her fourth
assignment of error is overruled.
{¶ 30} In her fifth assignment of error, Ellen maintains that the trial court erred by making 11
her liable for half of any mortgage deficiency and delinquent property-tax obligation. Under the
circumstances, Ellen contends an equal division of these obligations was not equitable. She notes
that after Neal filed his divorce complaint on July 29, 2010, he obtained temporary custody of the
children and enjoyed sole occupancy of the marital residence. From that time up to the final
hearing, Neal made just one mortgage payment and apparently fell behind on the property taxes.
Because Neal had exclusive possession of the marital residence, and because Ellen allegedly had
her own housing expenses during that time, she clams the trial court erred in making her
responsible for half of any mortgage deficiency and real-estate tax delinquency. Finally, Ellen
interprets the trial court’s divorce decree as obligating her to pay half of the mortgage and
property taxes indefinitely, even after finalization of the divorce.
{¶ 31} Upon review, we are unpersuaded by Ellen’s argument. As set forth more fully
above, Ellen voluntarily vacated the marital residence in July 2010 and took a job as a registered
nurse in New York. That same month, Neal filed for divorce. Throughout the pendency of the
divorce proceedings, Neal received disability benefits due to an on-the-job injury he had suffered.
He also received a small Veteran’s Administration benefit. At the time of the final hearing, the
parties owed approximately $139,000 on the marital residence, which had a fair market value of
only $95,000, resulting in negative equity of $44,000. Neal made only one mortgage payment
from August 2010 through March 2011, and the mortgage was six or seven payments in arrears at
the time of his final-hearing testimony. During this time, Ellen did not give Neal any money
(beyond child support) to pay his housing expenses. The trial court’s final judgment and divorce
decree ordered the parties to proceed with foreclosure, an order that has not been challenged on
appeal. 12
{¶ 32} Although Neal enjoyed sole occupancy of the marital residence after Ellen moved
to New York in July 2010, the trial court did not abuse its discretion in finding it equitable for the
parties to split any post-foreclosure mortgage deficiency and real-estate taxes owed. The bulk of
the parties’ negative home equity cannot be attributed to Neal’s relatively brief non-payment of
the mortgage after Ellen left the home. According to Ellen’s testimony, Neal made one payment
on his own, which reduced the mortgage balance to roughly $138,000. (May 3, 2011 hearing
transcript at 18). This means the parties had roughly $43,000 in negative equity before Neal’s
missed payments. His failure to make six or seven monthly payments resulted in the mortgage
balance rising to $139,000. (Id.). Even if they had been made, it is apparent that those missed
payments would have had little impact on the $44,000 in negative equity. To the extent the parties
were “upside down” on their mortgage, the situation plainly existed before Ellen moved to New
York. Therefore, requiring her to share equally in paying any mortgage deficiency was not an
abuse of discretion.
{¶ 33} With regard to the real-estate taxes, the record does not reveal the extent of the
non-payment, if any. Ellen’s only argument is that she should not be responsible for property taxes
incurred while Neal enjoyed sole use of the residence, particularly in light of the fact that she had
her own housing expenses. Once again, we see no abuse of discretion in the trial court’s finding
that Ellen should share any delinquent real-estate tax obligation. Although Neal obtained a court
order giving him exclusive use of the marital residence after he filed for divorce, Ellen already
had voluntarily left the residence and moved to New York. The trial court characterized Ellen’s
decision to move as a “unilateral” one. In light of her decision, which left Neal in the marital
residence, the trial court reasonably could find that Ellen should share responsibility for the 13
property taxes. This is particularly true given Ellen’s failure to present any evidence of the nature
and extent of her own housing-related expenses in New York, where she resided with her parents.
{¶ 34} Finally, we are unpersuaded that the trial court’s ruling obligates Ellen to pay the
mortgage and real-estate taxes “forever,” as she asserts on appeal. Contrary to her argument, the
trial court did not permit Neal to live in the marital residence permanently. Instead, it ordered the
parties to allow the property to go into foreclosure. Accordingly, Ellen’s fifth assignment of error
is overruled.
{¶ 35} Based on the reasoning set forth above, the judgment of the Clark County Common
Pleas Court is affirmed.
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Jon A. Doughty Elizabeth J. Henley Hon. Thomas J. Capper