2021 Ohio 2941
Ohio Ct. App.2021Background
- Jaka and Osman Berete divorced after a marriage that produced four children; Jaka filed for divorce in July 2018 and unresolved economic issues proceeded to trial.
- The magistrate appointed forensic accountant W. Dana Lavelle to analyze Osman’s income; Lavelle filed an affidavit.
- The court ordered a vocational evaluation; Dr. Richard P. Oestreich prepared a vocational assessment (provided to the parties) and opined Osman’s earning capacity justified imputing ~$50,000/year.
- At trial the parties testified; the court admitted Lavelle’s affidavit and Dr. Oestreich’s report into evidence though Dr. Oestreich did not testify in court. Osman did not subpoena Dr. Oestreich or specifically preserve contemporaneous objections on authentication/hearsay/cross-examination.
- The trial court imputed income of $50,000/year for child support after considering Lavelle’s affidavit, the vocational report, Osman’s testimony (including Uber earnings), and statutory factors.
- Osman appealed, arguing (1) the vocational report was hearsay/unauthenticated and (2) he was denied the opportunity to cross-examine the vocational expert; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of court-ordered vocational report (authentication/hearsay) | Jaka: the court may admit the court-ordered report; it was identified on the record and used appropriately. | Osman: report admitted without authentication and contains inadmissible hearsay. | Court: Osman failed to timely object on those grounds; report was identified by parties on the record and admission was not plain error. |
| Right to cross-examine court-appointed investigator/expert | Jaka: statutory rules permit appointment and reports; investigator may be subject to cross-examination but parties had opportunity and did not subpoena; court did not rely solely on the report. | Osman: was denied ability to cross-examine Dr. Oestreich and thus could not challenge assumptions underlying the report. | Court: Osman waived specific objection by not requesting cross-examination or subpoenaing the expert; even under plain-error review the court did not rely solely on the report and any error was harmless. |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion defined as decision that is arbitrary, unreasonable, or unconscionable)
- Rigby v. Lake Cty., 58 Ohio St.3d 269 (1991) (trial court has discretion in evidentiary rulings)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997) (plain-error review in civil appeals is limited to errors that affect fairness or integrity of proceedings)
- Schade v. Carnegie Body Co., 70 Ohio St.2d 207 (1982) (failure to timely object waives appellate review absent plain error)
- Sayre v. Hoelzle-Sayre, 100 Ohio App.3d 203 (1995) (trial courts may consider court-appointed investigator reports despite hearsay where investigator can be cross-examined)
- Nolte v. Nolte, 60 Ohio App.2d 227 (1978) (investigator reports must contain sufficient facts for the judge to draw conclusions)
- Hillard v. Hillard, 29 Ohio App.2d 20 (1971) (court should not base decision entirely on investigator's report)