Keen v. Wilson
139 N.E.3d 411
Ohio Ct. App.2019Background
- Parents (Keen and Wilson) shared a parenting plan for two young children after divorce; plan included alternating four-day rotations and left school-residence to be decided before D.W. began first grade.
- Disputes persisted post-decree (allegations reported to child services, GAL involvement, counseling, motion practice), and each parent moved to terminate the shared parenting plan and be named residential parent.
- Multiple experts/custody evaluator (Dr. Tener) and the GAL evaluated the family; primary recurring problem was the parents’ inability to communicate/co-parent effectively.
- Two "pocket-dial" recordings (captured by an app on Wilson’s phone) were partially transcribed and used at trial to impeach Keen regarding leaving children unsupervised and forgetting a car seat; the originals were not produced.
- Magistrate conducted in-camera interviews of the children, found best interests favored naming Wilson sole residential parent, and awarded Keen guideline parenting time and child support; trial court adopted the magistrate’s decision and denied Keen’s motion for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial bias/recusal of magistrate based on campaign support | Magistrate should have recused or disclosed because Wilson’s counsel and Wilson’s mother supported magistrate’s later campaign, creating appearance of impropriety | Any campaign-related support occurred after trial/decision; no pre-decision involvement or proof of bias | No abuse of discretion; no evidence support occurred before decision, so no appearance of impartiality problem |
| Admissibility of partial transcript of pocket-dial recording (Evid.R.1002 & 106) | Transcript admission violated best-evidence and rule-of-completeness because original recording (and remainder) were not produced | Keen authenticated the transcript as accurate after listening; transcript used to impeach her inconsistent statements; remaining portions were not shown to be needed | Admission not reversible error: foundation/accuracy established and any omission of remainder would be harmless given it was impeachment evidence |
| Termination of shared parenting plan (R.C. 3109.04 factors) | Magistrate/trial court misapplied/ignored statutory best-interest factors and evidence favored keeping Keen as residential parent | Court considered statutory factors, in-camera child statements, expert/GAL testimony, supervision concerns, children’s adjustment, and family supports favoring Wilson | No abuse of discretion; competent, credible evidence supported terminating shared plan and naming Wilson residential parent |
| Weight of expert/GAL recommendations vs. magistrate’s decision | Decision conflicts with Dr. Tener and GAL recommendations, so judgment is against manifest weight of evidence | Trial court weighed credibility, timing of evaluation, and other evidence; magistrate addressed perceived limits in evaluator’s data and credited different testimony | Not against manifest weight; appellate court defers to trial factfinder credibility choices and affirms |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (U.S. 1967) (reasonable-expectation-of-privacy test governs interception of oral communications)
- United States v. Wuliger, 981 F.2d 1497 (6th Cir. 1992) (no impeachment exception for use of illegally obtained wiretap evidence in civil context; caution about surreptitious recordings)
- Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015) (applies Katz test to pocket-dial context; distinguishes expectations of privacy between caller and third-party spouse)
- In re Disqualification of Burt, 145 Ohio St.3d 1239 (Ohio 2015) (judicial disqualification principles in context of campaign support; judges presumed able to decide impartially)
- Hodges v. Hodges, 175 Ohio App.3d 121 (Ohio App. 2008) (recording household calls by one household member can constitute illegal interception under federal and Ohio law)