Buckmaster v. Buckmaster
2014 Ohio 793
Ohio Ct. App.2014Background
- Parties filed a joint dissolution on September 9, 2010; final decree and shared parenting order issued October 29, 2010.
- Appellant moved to terminate spousal support in August 2012 based on alleged cohabitation by Appellee with a male over 18.
- Ex parte order on July 31, 2012 named Appellant as temporary residential custodian of the three children.
- A spousal-support hearing occurred October 23, 2012; the trial court refused to let the parties’ sixteen-year-old son testify due to an unwritten local rule against child testimony.
- Appellant proffered what the child’s testimony would have shown; magistrate denied termination; trial court later denied objections to the magistrate’s decision.
- Court ultimately reversed, sustaining Appellant’s assigned errors I–V and remanding for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the unwritten rule against child testimony | Buckmaster argues lack of notice and due process violation. | Court relied on longstanding policy to protect children. | Unwritten rule invalid; lack of notice violated Civ.R. 83 and Sup.R. 5; error prejudicial. |
| Enforcement of unwritten rule and public policy concerns | Enforcement undermines public confidence and conflicts with public policy. | Policy aims to protect children; not a formal rule but practice. | Enforcement improper; conflicts with rules and public policy. |
| Due process and rules of evidence regarding child testimony | Per se blanket ban violates due process and Evid.R. 601. | Policy reflects best interests and court discretion. | Blanket ban improper; Evid.R. 601 requires presumptive competency and court should consider evidence. |
| Sufficiency of the proffer for the child’s testimony | Proffer described relevant firsthand knowledge of living arrangements and support; sufficient. | Proffer inadequate to determine impact on outcome. | Proffer sufficient to preserve error; trial court abused discretion excluding testimony. |
| Harmfulness of the exclusion of the child’s testimony | Exclusion affected substantial rights and was prejudicial given lack of notice. | Harmless error unless proven otherwise. | Exclusion not harmless; prejudicial without notice. |
Key Cases Cited
- State v. Singer, 50 Ohio St.2d 103 (Ohio Supreme Court 1977) (Rules of Superintendence guide court conduct but are not substantive rights)
- Glimcher v. Glimcher, 29 Ohio App.2d 55 (Ohio App.2d 1971) (Children’s testimony in domestic matters is discouraged; not controlling authority)
- Brandt v. Brandt, 3rd Dist. Auglaize No. 2-05-30, 2006-Ohio-883 (Ohio App.3d 2006) (Court rejects public policy approach to exclude child testimony without competency ruling)
- Moser v. Moser, 72 Ohio App.3d 575 (1991) (Proffer required to show potential impact of excluded testimony; child testimony allowed generally)
- In re Estate of Traylor, 2004-Ohio-6504 (Ohio App.3d 2004) (Unwritten local rule sanctions retroactivity concerns; need written rules)