2020 Ohio 70
Ohio Ct. App.2020Background
- Jennifer and Mark DeGrant married in 2007; one child (R.D.) born 2011. Jennifer filed for divorce in 2015 and obtained an ex parte domestic violence CPO; supervised visitation for Mark followed.
- Extensive evidentiary hearing before a magistrate (multiple days across 2017–2018). Magistrate issued detailed findings: awarded shared parenting to Mark, imputed incomes for child support, divided bank/retirement/TD Ameritrade assets (awarding Jennifer small percentage of one TD Ameritrade account and 5.81% of net sale proceeds of the marital residence), allocated credit-card debt to Jennifer, denied spousal support, and declined to award additional attorney fees.
- Trial court adopted the magistrate’s decision in full. Jennifer filed objections, supplemental objections, and a motion for new trial; court denied the new trial motion. Appeals were consolidated to this Court.
- On appeal Jennifer challenged exclusion of certain witnesses (child’s therapist Dr. Janet Davis and visitation supervisors), the shared-parenting order and the court’s modification/adoption of the parenting plan, classification/tracing of marital vs. separate assets (notably TD Ameritrade account and real estate), income imputations and spousal/child support calculations, and denial of attorney fees.
- This appellate court affirmed most rulings but reversed in part: it found exclusion of therapist Dr. Davis reversible error as to custody, held the trial court erred by adopting and modifying a shared-parenting plan without requiring resubmission, and remanded to recalculate child support to include dividend/interest income from Mark’s separate investment accounts. The court otherwise upheld property division, credit-card allocation, denial of spousal support, and attorney-fee rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of child therapist (Dr. Davis) | Davis had relevant, admissible testimony about the child’s regression, parent interactions, and therapy that the court should hear. | Court-appointed evaluator (Neuhaus) already incorporated Davis’s input; exclusion proper due to privilege and duplication. | Reversible error: Davis should have been permitted to testify; Neuhaus’s use of Davis’s statements did not substitute for Davis’s live testimony. |
| Admission/limitation of visitation supervisors’ evidence (Flanagan, Behrman) | Supervisors’ written reports/video and testimony factual and necessary to assess father’s conduct and best interest. | Their observations were relayed to Neuhaus and otherwise testified to at trial; written reports cumulative or impeachment-only. | No abuse of discretion in excluding written summaries and limiting testimony for Flanagan; Behrman’s exclusion not materially prejudicial. |
| Adoption/modification of shared parenting plan | Magistrate’s modifications to Defendant’s plan were minor; trial court may implement custody best for child. | Defendant sought shared parenting; court adopted magistrate’s modified plan into final order. | Court erred by adopting and simultaneously modifying a filed shared-parenting plan without ordering resubmission as required by R.C. 3109.04(D)(1)(a)(iii); remand to comply with statutory procedure. |
| Classification/tracing of assets (TD Ameritrade, real estate) | Tracing incomplete; accounts and proceeds were commingled and should be treated largely as marital. | Expert Davis (for Mark) traced premarital funds and showed limited marital portion (16.4% rule applied); down payments and mortgage reductions traced. | Magistrate’s crediting of defendant’s expert was supported; classification and traceability findings upheld. |
| Child support calculation (inclusion of investment income) | Court failed to include dividends/interest from Mark’s investment accounts when computing gross income for child support. | Income largely from separate premarital investment account and trading is not reliably recurring; magistrate’s figure appropriate. | Reversed and remanded: dividends/interest from Mark’s separate investment accounts must be included in gross income for child support recalculation. |
| Spousal support | Jennifer argued husband’s prior high earning capacity and investment income justify spousal support. | Magistrate found both voluntarily unemployed, assets considered, and no spousal support warranted. | Affirmed: no abuse of discretion in denying spousal support. |
| Attorney fees award | Jennifer: large, reasonable fees incurred and equitable award warranted. | Defendant advanced funds and fees excessive/unreasonable. | Affirmed: magistrate reasonably limited award and declined additional fees. |
Key Cases Cited
- Hymore v. State, 9 Ohio St.2d 122 (Ohio 1967) (trial court has broad discretion in admitting/excluding evidence)
- Barry v. Barry, 169 Ohio App.3d 129 (Ohio Ct. App. 2006) (therapist–patient privilege in juvenile/therapy context recognized)
- Kelm v. Kelm, 92 Ohio St.3d 223 (Ohio 2001) (best interest of the child is central in custody determinations)
- Phung v. Waste Mgmt., Inc., 71 Ohio St.3d 408 (Ohio 1994) (rebuttal witness rights)
- Berger v. Berger, 57 N.E.3d 166 (Ohio Ct. App. 2015) (harmless-error review and substantial rights under Civ.R. 61)
- State ex rel. DeWine v. Deer Lake Mobile Park, Inc., 29 N.E.3d 35 (Ohio Ct. App. 2015) (trial court discretion on evidence)
- Allison v. McCune, 75 N.E.3d 676 (Ohio Ct. App. 2016) (guardian/ evaluator reports may include hearsay but are admissible with due process)
- A.S. v. J.W., 131 N.E.3d 44 (Ohio 2019) (gross income for child support must include earned and unearned income)
- Marrow v. Becker, 3 N.E.3d 144 (Ohio 2013) (definition and treatment of gross income in child support context)