Murray v. Murray

[Cite as Murray v. Murray, 2018-Ohio-3242.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

CATHERINE MARION MURRAY, : OPINION

Plaintiff-Appellant, :
CASE NO. 2017-P-0070
- vs - :

T. ANDREW MURRAY, :

Defendant-Appellee. :

Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 2007 DR 00183.

Judgment: Affirmed.

Ralph C. Megargel, Megargel & Eskridge Co., LPA, 231 South Chestnut Street,
Ravenna, OH 44266 (For Plaintiff-Appellant).

Leslie S. Graske, 120 East Mill Street, Suite 405, Akron, OH 44308 (For Defendant-
Appellee).

DIANE V. GRENDELL, J.

{¶1} Plaintiff-appellant, Catherine Marion Murray, appeals the Judgment Entry

of the Portage County Court of Common Pleas, Domestic Relations Division, granting

defendant-appellee, T. Andrew Murray, custody of the parties’ minor child, Annika

Murray. The issue before this court is whether a child’s best interest determination is

supported by the record where the trial court emphasized that it would be best for the

child to be reunited with her sibling without expressly discussing the other best interest

factors. For the following reasons, we affirm the decision of the court below.
 {¶2} The parties were formerly married and are the parents of two children: Eve

Hanna Murray (dob 04/14/00) and Annika Colebrook Murray (dob 10/08/02). On June

18, 2008, the parties were granted a divorce and Catherine was awarded custody of the

children.

{¶3} On January 13, 2017, Andrew filed a Motion to Modify Parental Rights,

asking the domestic relations court “to modify parental rights by naming him as the

custodial parent of the parties’ two minor children” on the grounds that Catherine “has

made a mockery of prior court orders by ignoring them and failing to provide any

visitation opportunities for the defendant, and further has engaged in a pattern of

behavior to alienate the children from movant.”

{¶4} On April 4, 2017, a hearing was held on Andrew’s Motion at which

Catherine failed to appear.

{¶5} On April 6, 2017, the domestic relations court granted Andrew custody of

Eve but continued the proceedings with respect to Annika.

{¶6} On June 14 and July 21, 2017, additional hearings were held before the

domestic relations court at which the following testimony was given:

{¶7} Andrew testified that he lives in Aurora, Ohio. Annika has Rett syndrome,

a genetic neurological disorder which renders her “profoundly disabled”:

She cannot --- she’s not auditory, she’s not ambulatory. * * * [I]t’s
difficult for her to acknowledge what decision she’s making and
requires a lot of time and care and understanding from the
caregiver to learn how to read her, so to speak. And she does
require 24/7 care and I’m very aware of this because for the first
many years of her life, I was there for that.

{¶8} Andrew also testified regarding the special equipment necessary for

Annika’s care, her medications, and the issues with feeding her.

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 {¶9} Andrew testified that he has had custody of Eve for about two and a half

months. He received a voice message from Catherine that she was going to “wash her

hands” of the situation with Eve, and found that Catherine had abandoned her in the

house where they were living and moved in with her (Catherine’s) boyfriend. Eve was

found by local police living in “inadequate” conditions with drug paraphernalia present

and took her to a placement home. Andrew took custody of Eve from the placement

home. At this time, Catherine did not allow him to see Annika. According to Andrew,

Eve had been acting as Annika’s primary caregiver.

{¶10} Andrew testified that he is willing and committed to educating himself and

adjust his lifestyle so as to be able to care for Annika. His mother, a registered nurse,

and his wife, who works at home, are both willing to support him in caring for Annika.

Eve is also available to provide first-hand knowledge of Annika’s situation, although he

would not rely on her to be Annika’s caregiver.

{¶11} Catherine testified that she has resided in Savannah, Georgia, since

Annika was about eight- or nine-years-old and has been her primary caregiver for her

whole life. She testified regarding Annika’s condition and seizure disorder. Annika

attends a public school under an individualized education program. Catherine

discussed Annika’s therapists and doctors. Annika uses specialized equipment for

bathing, standing, and transportation.

{¶12} Catherine testified that Annika vocalizes but does not speak. In addition

to grunts or groans, Annika will communicate by raising an eyebrow or through a look.

She does not always indicate her needs such as hunger/thirst, pain, or discomfort, and

one has to guess at what she is trying to communicate. “It would take quite some time

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and some training to show people * * * how to move her, how to walk with her, and how

to keep her comfortable and how to understand her.”

{¶13} Catherine testified that Annika sleeps with a video monitor in case she has

seizures during which she is able to injure herself.

{¶14} Catherine has “specific concerns” about Andrew’s ability to care for

Annika, such as his mental well-being (he is prone to domestic violence) and “he

doesn’t seem to do things that an adult father would do to take care of their family.”

Catherine testified that, while she was married to Andrew, he was neglectful of Annika’s

care and has been convicted multiple times of child endangering with respect to Annika.

{¶15} Catherine denied impeding Andrew from visiting the children. Although

she would not send the children to Ohio to visit him, he only came to Georgia three

times in five years to visit them.

{¶16} Catherine is a massage practitioner which is important for Annika’s care

as her muscles will atrophy over time. She is in a relationship with the medical director

of the cancer center in Savannah and he is willing to assist in caring for Annika.

{¶17} Catherine admitted that there were times that Eve cared for Annika, but

she does not trust Eve and is uncertain how close Eve and Annika are.

{¶18} Catherine denied that it was ever her intention to disregard court orders,

but she was struggling as a single mother and could not afford to buy plane tickets.

{¶19} Andrew further testified regarding his convictions for child endangering

and disorderly conduct. On one occasion, he rode Eve on his scooter wearing a bicycle

helmet instead of a motorcycle helmet. On another occasion, Annika fell out of a chair

while in his custody. Catherine was the complaining witness on both occasions. The

disorderly conduct involved an altercation with his brother.

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 {¶20} Andrew testified that many of the same doctors who cared for Annika

when she lived in Ohio are still available to manage her care. He would also be willing

for Annika to have extended visits with Catherine and to assist in transportation.

{¶21} Eve testified that, when she lived with her mother, she, as well as a

neighboring girl, would assist in caring for Annika, including administering medication.

Eve testified that her mother took very good care of Annika and put her needs first.

{¶22} Eve also testified regarding the circumstances in which she was

abandoned by her mother.

{¶23} On September 6, 2017, the domestic relations court issued a Judgment

Entry, awarding Andrew custody of Annika. The court stated:

The Court finds the child, Annika Murray, is developmentally
challenged. She cannot speak, her movements are restricted and
she is confined to a wheelchair. Much care is required for Annika
and both Plaintiff and Defendant are able and willing to provide the
needed care for her. Both parties also want custody of the child.

The Court believes that the separation of Annika from her
sister, Eve, has had a negative effect on Annika and it would be
best to have the two sisters together again. Eve has provided
much of the needed care for Annika.

Accordingly, the Court finds it is in the best interest of Annika
for the Defendant to be the residential parent and legal custodian.

{¶24} On October 6, 2017, Catherine filed a Notice of Appeal. On appeal, she

raises the following assignment of error:

{¶25} “[1.] The trial court erred by awarding custody of the minor child Annika

Murray, DOB 10/08/2002, to the Defendant-Appellee, T. Andrew Murray when such an

award was against the manifest weight of the evidence and not in the child’s best

interest under Ohio Revised Code § 3109.04(F)(1).”

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 {¶26} “The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that have arisen

since the prior decree or that were unknown to the court at the time of the prior decree,

that a change has occurred in the circumstances of the child, the child’s residential

parent, or either of the parents subject to a shared parenting decree, and that the

modification is necessary to serve the best interest of the child.” R.C. 3109.04(E)(1)(a).

{¶27} “In determining the best interest of a child pursuant to this section * * *, the

court shall consider all relevant factors, including, but not limited to: * * * (d) [t]he child’s

adjustment to the child’s home, school, and community; (e) [t]he mental and physical

health of all persons involved in the situation; * * * (h) whether either parent * * *

previously has been convicted of or pleaded guilty to any offense involving a victim who

at the time of the commission of the offense was a member of the family or household

that is the subject of the current proceeding and caused physical harm to the victim in

the commission of the offense.” R.C. 3109.04(F)(1). “Though there should be some

indication in the judgment entry that the trial court considered the best interests of the

child pursuant to R.C. 3109.04(F), there is no requirement it make specific findings in its

entry as to each and every factor.” Brandt v. Brandt, 11th Dist. Geauga No. 2012-G-

3064, 2012-Ohio-5932, ¶ 13.

{¶28} A trial court enjoys broad discretion in a child custody modification

proceeding and “the reviewing court in such proceedings should be guided by the

presumption that the trial court’s findings were indeed correct.” Miller v. Miller, 37 Ohio

St.3d 71, 74, 523 N.E.2d 846 (1988). Although broad, the exercise of its discretion

“must be guided by the language set forth in R.C. 3109.04” and its “determination in a

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custody proceeding is * * * subject to reversal upon a showing of an abuse of

discretion.” Id.

{¶29} “A reviewing court should not reverse a decision simply because it holds a

different opinion concerning the credibility of the witnesses and evidence submitted

before the trial court.” (Citation omitted.) Davis v. Flickinger, 77 Ohio St.3d 415, 419,

674 N.E.2d 1159 (1997); Baxter v. Baxter, 27 Ohio St.2d 168, 173, 271 N.E.2d 873

(1971) (“[a]buse of discretion connotes something more than merely being against the

manifest weight of the evidence”).

{¶30} Catherine argues that the trial court erred “balancing the factors set forth

in Ohio Revised Code § 3109.04(F)(1) in determining the best interest of the minor child

by not considering the specific, special needs of the profoundly disabled minor child, all

of the best interest factors * * *, nor the extenuating circumstances of the parties * * *.”

Appellant’s brief at 10.

{¶31} Catherine maintains that “every piece of evidence presented to the trial

court demonstrated that Annika was well adjusted to her home, school, and community

in Georgia with [her mother]” and that the domestic relations court “completely failed to

consider” her physical and mental health while “acknowledging the lack of appropriate

care available to Annika if she were to be relocated to live with her father.” Appellant’s

brief at 12.

{¶32} Annika’s adjustment to her home, school, and community in Georgia is a

valid factor for the lower court’s consideration, but not one that necessarily merits

considerable weight in these circumstances. Given her disability, her adjustment to any

given situation will be heavily dependent on her caregiver. Also, Annika spent the first

eight or nine years of her life in Ohio without any apparent adjustment issues.

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 {¶33} Catherine’s point regarding the lack of appropriate care in Ohio is dubious.

The lower court judge did “doubt * * * that there’s any doctor up here that specializes in

[Rett syndrome],” that is, he doubted one would be able “to find [a specialist] in

Ravenna.” Against the court’s doubt, we must consider Andrew’s testimony that the

neurologist who treated her when she lived in Ohio is still practicing at the Cleveland

Clinic and Catherine’s own admission that the medical facilities available in Cleveland

were not inferior to those in Savannah. It should also be recognized that the situation in

transferring Annika’s medical care from Georgia to Ohio would not present any more of

a challenge than when it was transferred from Ohio to Georgia.

{¶34} Catherine asserts that the lower court “totally failed to consider” that

Andrew “has proved over and over again throughout the history of this matter that he is

neither willing nor capable of being a proper caregiver for Annika,” noting in particular

his convictions for child endangerment.

{¶35} There is no real evidence that the lower court failed to consider this

evidence. Both Catherine and Andrew testified regarding the charges/convictions and

the Complaints and Sentencing/Journal Entry were entered into evidence. That the

court did not mention the convictions in its ruling suggests rather that the court did not

consider the evidence significant in its decision to grant custody to Andrew.

{¶36} This court has recognized, as have many of the other appellate districts,

that, in making a custody determination, “the trial court is not required to expressly

consider or balance [the R.C. 3109.04(F)] factors before awarding custody,” nor is the

court “required to make express findings of fact unless it has a Civ.R. 52 motion before

it as long as there is some indication in the judgment entry that the trial court considered

the best interests of the children.” In re L.R.S., 11th Dist. Portage Nos. 2016-P-0050

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and 2016-P-0051, 2017-Ohio-2604, ¶ 25 (cases cited); Giovanini v. Bailey, 9th Dist.

Summit No. 28631, 2018-Ohio-369, ¶ 13 (“[w]hile [R.C. 3109.04] does mandate

consideration of each factor by the trial court, the court need not explicitly reiterate its

findings with regard to those factors absent a Civ.R. 52 request for findings of fact and

conclusions of law”) (citation omitted); Girdlestone v. Girdlestone, 5th Dist. Stark No.

2016 CA 00019, 2016-Ohio-8073, ¶ 34 (“there is no requirement that a trial court

separately address each best interest factor enumerated in R.C. 3109.04,” and “[a]bsent

evidence to the contrary, an appellate court will presume the trial court considered all of

the relevant factors listed in R.C. 3109.04(F)(1)”).

{¶37} In the present case, Catherine did not make a request for specific findings

pursuant to Civil Rule 52.

{¶38} In considering the conduct of both parties, it should be noted that

Catherine had been found to have “steadfastly refused to provide visitation” to Andrew

resulting in her being found in contempt and a warrant issuing for her arrest and that her

conduct evidences some disregard for Eve’s welfare. Catherine protests that the “court

failed completely to consider that [she] was not financially or physically able to comply

with the court’s order.” Appellant’s brief at 13. As with the lower court’s alleged failure

to consider Andrew’s child endangering convictions, we presume that the court duly

considered the evidence of Catherine’s failure to comply with the court’s orders and

weighed that evidence accordingly in the exercise of its discretion.

{¶39} Finally, Catherine contends that the court’s finding that “it would be best to

have the two sisters together again” is “completely without evidentiary support.”

Appellant’s brief at 14. She notes that Annika “has not and cannot express any desire

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to be reunited with her sister” and that, at no point during Eve’s testimony, “did she

indicate that she missed Annika.”

{¶40} We find no abuse of discretion. A child’s “interaction and interrelationship”

with her siblings is a recognized factor in determining the child’s best interests. R.C.

3109.04(F)(1)(c). There was evidence in the record that Eve is capable of and has

actually cared for Annika in the absence of other supervision. While it was not

expressly recognized, it is evident that Eve has lived with Annika for as long as

Catherine has lived with her. We do not find the lack of direct evidence of affection

between the sisters sufficient to undermine the court’s judgment. Admittedly, it would

have been helpful if the lower court had discussed the emphasis placed on reuniting the

sisters in relationship to the other evidence in the record but, as noted above, it was not

required to do so. Compare Meyer v. Anderson, 2d Dist. Miami No. 96CA32, 1997 WL

189383 (Apr. 18, 1997).1

{¶41} The sole assignment of error is without merit.

{¶42} For the foregoing reasons, the Judgment Entry of the Portage County

Court of Common Pleas, Domestic Relations Division, granting Andrew custody of

Annika, is affirmed. Costs to be taxed against the appellant.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

1. “While we concede that the court could have been much more conscientious about identifying the
legal standards that it was applying, we know of no authority, and Appellant points to none, for the
proposition that R.C. 3109.04(E)(1)(a)(iii) requires the court to cast the whole of its reflection on the case
into words. * * * In its entry the court explained that it decided to place Brandon with Anderson ‘because
she will have more time with him, she is nurturing and Brandon will be with his eight year old half-brother,
Jimmie.’ * * * We believe that this statement, while perhaps only minimally sufficient, constitutes a
reference ‘to some evidence which supports the elements of the applicable statute.’” Meyer at *4.

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