[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.

                                                              ..........

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

                                                      .............

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
