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Foster v. Foster

Court of Appeals of Ohio, Tenth District

June 15, 2017

Sherrie Foster [nka Tavtigian], Plaintiff-Appellant,
v.
Mark A. Foster, DDS, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations (C.P.C. No. 09DR-0756)

         On brief:

          Gary J. Gottfried Co., L.PA., Gary J. Gottfried and Eric M. Brown, for appellant.

         Argued:

          Gary J. Gottfried.

         On brief:

          The Nigh Law Group, LLC, Joseph A. Nigh and Courtney A. Zollars, for appellee.

         Argued:

          Joseph A. Nigh.

          DECISION

          HORTON, J.

         {¶ 1} Plaintiff-appellant, Sherrie Foster (n.k.a. Tavtigian), appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting the motion of defendant-appellee, Mark A. Foster, to terminate spousal support and denying appellant's motion for expense money. For the reasons which follow, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant and appellee were married on November 29, 1986, and two children were born as issue of the marriage. The parties were divorced pursuant to an agreed judgment entry decree of divorce on October 2, 2009. The decree of divorce obligated appellee to pay appellant $6, 500 per month in spousal support, and specified that spousal support would terminate if any of the following events occurred: the death of either party; appellant's remarriage; appellant's cohabitation with an unrelated adult; or after 116 months of payments.

         {¶ 3} On January 21, 2014, appellee filed a motion to terminate his spousal support obligation due to appellant's cohabitation with an unrelated adult. On July 30, 2014, appellant filed a motion for expense money, asking the court to order appellee to pay the out-of-pocket expenses and attorney's fees she incurred defending against the motion to terminate.

         {¶ 4} On September 4, 2014, appellee filed the April 29, 2014 depositions of appellant and David Fleming, appellant's paramour. A magistrate of the domestic relations court held a hearing on the motion to terminate on September 8, 2014.

         {¶ 5} Appellee is a dentist and appellant is a dental hygienist. During the parties' marriage, appellant worked as a hygienist in appellee's dental office. Fleming met appellant at the dental office in 2009 when he "was a patient in [her] chair." (Sept. 8, 2014 Tr. at 18.) Appellant and Fleming began dating a couple of days after they met, and have been in a committed, exclusive relationship with each other for the last three years.

         {¶ 6} Appellant is currently employed by The Ohio State University ("OSU") as an administrative associate in the area of oral pathology. Appellant works over 40 hours a week, receives overtime, and has employer provided health insurance and a retirement plan. Fleming is a certified public accountant, and currently is the vice president and chief financial officer of Rod's Western World. In 2013, Fleming was the chief financial officer for housing and dining at OSU. Fleming has been married, and divorced, twice.

         {¶ 7} Fleming and appellant both testified that they do not live together. In May 2012, appellant sold the marital residence and purchased a condominium located at Marblecliff Crossing Court in Columbus, Ohio. Fleming "looked at some homes" with appellant, and appellant used a real estate agent Fleming recommended to purchase the Marblecliff home. (Tr. at 48.)

         {¶ 8} Fleming testified that he lives with his son, daughter-in-law, and their two children in a four bedroom house located in Marengo, Ohio. Fleming bought the Marengo property in January 2014, and "paid $115, 000 down on that property, " which was approximately half the purchase price. (Tr. at 108.) Because Fleming purchased half the property outright, Fleming's son pays the entire monthly mortgage on the property. Prior to purchasing the Marengo home, Fleming owned a two-bedroom condominium located on Chatham Lane in Columbus, Ohio.

         {¶ 9} Fleming testified that he goes to appellant's home after work "three to four" days a week, but stated that he doesn't "normally spend the night there." (Tr. at 75.) At his deposition, Fleming stated that he "[p]ossibly" spent more than half the nights in 2013 with appellant. (Fleming Depo. at 15.) At the hearing, Fleming stated that he "couldn't tell you" if he spent more than half the nights in 2013 with appellant. (Tr. at 92.)

         {¶ 10} When appellee's counsel asked appellant if Fleming spent more than half the nights in 2013 with her, appellant said "no, " and asserted, "[h]ow could I possibly know the answer to that question? I don't write it down. I don't keep a diary or a journal. Nobody asked me to keep track of it." (Tr. at 41.) At the hearing, appellant stated that she and Fleming spend "[p]robably an average of at least two" nights a week together. (Tr. at 41.) At her deposition, appellant had "[n]o idea" how many days in a month Fleming would stay the night with her, but knew that they had "been apart four or five days at least" per month. (Appellant Depo. at 44, 46.)

         {¶ 11} Appellee hired a private investigator, Kevin Wolfe, to observe appellant and Fleming. On Monday June 3, Tuesday June 4, and Wednesday June 5, 2013, the investigator observed Fleming leave the Marblecliff residence around 7:00 a.m. each morning. On Monday June 17, Tuesday June 18, Wednesday June 19, and Friday June 21, 2013, the investigator again observed Fleming leave the Marblecliff residence around 7:00 a.m. each morning. Thereafter, the investigator observed the couple together at Marblecliff on seven different weekend nights.

         {¶ 12} Wolfe attempted to look through appellant's trash at Marblecliff during the three weeks before the hearing; however, unlike all of the other residents in the neighborhood, appellant did not place any trash outside for removal during those weeks. Wolfe conducted surveillance at Fleming's Marengo home over the 30 days before the hearing, but did not observe Fleming at the Marengo home. Wolfe was able to collect trash from the Marengo residence, but did not find "any trash or documents related to David Fleming." (Tr. at 153.)

         {¶ 13} On Thursday, June 13, 2013, Wolfe went to Fleming's Chatham Lane residence and knocked on the door. Case Kegley, who is the son of Fleming's good friend, answered the door. Wolfe and Case spoke for twenty minutes inside the Chatham Lane residence. Wolfe recorded the conversation, and the audio recording of the conversation was played during the hearing. Case informed Wolfe that he had "a 'special deal' with Mr. Fleming, including no lease and a rent payment of $500.00 per month, " which was "designed to cover Mr. Fleming's mortgage payment." (Def.'s Ex. G.) Case informed Wolfe that Fleming "was moving out around the time that Case needed housing, " that Fleming had moved "in with a woman that lived somewhere nearby within the Upper Arlington area, " and that "his rental of the condo was really helping both of them out." (Def.'s Ex. G; Mag.'s Decision at 6.)

         {¶ 14} At the hearing, Case stated that he lied to the investigator on June 13, 2013. Case testified that Fleming had not moved out, and that Fleming had lived with him at Chatham Lane. Case explained that he lied to Wolfe about Fleming moving out because he "just wanted [Wolfe] out of the place." (Tr. at 123.) However, Case admitted that he spoke with Wolfe for twenty minutes, did not ask him to leave at any point, and gave Wolfe both his phone number and Fleming's phone number.

         {¶ 15} Appellant and Fleming have taken several vacations together. Between 2009 and 2014, they went to Mexico, California, Florida, South Carolina, Tennessee, Vermont, Italy, and New York. Fleming stated that "[q]uite frequently, " they reimburse each other in cash for the expenses from their trips. (Tr. at 90.) The couple "spend the majority of [their] holidays together, " including Thanksgiving and Christmas, and have attended work events together. (Tr. at 61-63.) Appellant stated that Fleming has given her "a couple sets of earrings, a necklace, a ring, [and] a computer" as gifts, and that she has given him "picture frames, binoculars, iPad, [and a] wool blanket." (Tr. at 65-66.)

         {¶ 16} On April 24, 2015, the magistrate issued a decision granting appellee's motion to terminate spousal support and denying appellant's motion for expense money. The magistrate noted Case's testimony that he lied to the investigator, but observed that throughout the recorded conversation, Case was "quite comfortable, conversational and friendly with Mr. Wolfe. He freely invites Mr. Wolfe into the apartment and offers him Mr. Fleming's phone number." (Mag.'s Decision at 5.) The magistrate found Case's in court testimony to be "deliberately evasive, forgetful, and just not credible at all." (Mag.'s Decision at 6.) The magistrate noted that appellant and Fleming were both quite "vague" regarding how much time they would spend, and concluded that their testimony was "self-serving, ...


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