Pallone v. Pallone
2017 Ohio 9324
| Ohio Ct. App. | 2017Background
- Denise and Roman Pallone divorced by agreed decree in 2006 and adopted a shared parenting plan; three children were born of the marriage.
- Denise moved in 2013 to terminate/modify the shared parenting plan and filed contempt motions; Roman filed cross-motions (dismissals, contempt, discovery requests, appointment of GAL/attorney for children).
- Extensive hearings were held in 2014; the magistrate issued a decision in February 2015, adopted by the trial court. Roman filed 35 objections and sought a transcript at public expense; transcript issues led to interlocutory appellate proceedings and a remand to evaluate his indigency affidavit and partial transcripts.
- On May 4, 2017 the trial court overruled almost all objections, terminated the shared parenting plan, appointed Denise sole residential and legal custodian, adjusted parenting time for the twins, addressed child support, tax exemptions, school tuition, liens, and declined mandatory reunification counseling.
- Roman appealed; the Tenth District Court of Appeals affirmed in full, reviewing discovery rulings, evidentiary rulings, credibility findings, and discretionary custody/support determinations under abuse-of-discretion and manifest-weight standards.
Issues
| Issue | Plaintiff's Argument (Denise) | Defendant's Argument (Roman) | Held |
|---|---|---|---|
| Discovery: exclusion of compound RFA and partial grant of motion to compel | Discovery rulings were proper and fair | Court improperly excluded/denied many RFAs and failed to compel full discovery | Court affirmed: magistrate properly struck compound RFAs and appropriately granted motion to compel in part; no abuse of discretion |
| Mediation requirement under 2006 parenting plan | Mediation requirement may be excused given parental conflict | Plan requires mediation before modification | Court affirmed: refusal to enforce mediation was acceptable because parties’ conflict rendered mediation futile |
| Appointment/replacement of guardian ad litem (GAL) and counsel for children | New GAL’s appointment and no separate counsel was reasonable | GAL replacement improper; counsel should have been appointed for children | Court affirmed: new GAL appropriate given time lapse; no abuse in declining to appoint attorney for children |
| Reliance on GAL’s report | GAL’s investigation was sufficient and credible | GAL failed to follow local rules re: records and evaluations; court over-relied on GAL | Court affirmed: GAL’s investigation complied with local rules; trial court may weigh credibility and rely on GAL |
| Admission of voicemail recordings and email | Excluding recordings protected statutory prohibition and required authentication | Recordings were relevant and should be admitted | Court affirmed: exclusion was within discretion due to authentication concerns and child-recording statute issues |
| Right of first refusal / parenting-time denials | Denise not willfully denying parenting time; lack of proof of pattern | Roman lost measurable parenting time under ROFR and should be awarded remedies | Court affirmed: Roman failed to prove specific denied dates/times; trial court policy (ROFR applies >4 hrs) reasonable |
| Termination of shared parenting plan and custody award | Denise should be sole residential/legal custodian based on best-interest factors | Roman argued termination and custody decision unsupported, against manifest weight | Court affirmed: trial court considered R.C. 3109.04 factors, credited GAL and evidence; no abuse of discretion or manifest-weight error |
| Child support and tax dependency exemptions | Child support and awarding exemptions to Denise just and supported by factors | Roman argued income disparity and exemption allocation unjust and lowered his standard of living | Court affirmed: trial court reviewed R.C. 3119.23 factors and concluded guideline support appropriate; exemption allocation not shown to be against children’s interests |
| Private school tuition (St. Matthew) reimbursement obligation | Shared plan obligated Roman to pay tuition while children attend St. Matthew; he made some post-2007 payments | Roman contends obligation ended in 2007 or was waived by Denise | Court affirmed: plain language required father to pay while attending; his post-2007 payments and continued enrollment supported reimbursement obligation |
| Liens on property and attorney fees | Denise sought removal of liens and no attorney-fee award | Roman argued liens resulted from Denise’s failure to refinance and sought fees | Court affirmed: liens arose from Roman’s tax failures and he must remove them; no abuse in declining attorney-fee award |
Key Cases Cited
- Booth v. Booth, 44 Ohio St.3d 142 (Ohio 1989) (abuse-of-discretion standard for domestic relations orders)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion)
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio 1988) (deference to trial court in custody proceedings)
- Martin v. Martin, 18 Ohio St.3d 292 (Ohio 1985) (division of marital property reviewed for abuse of discretion)
- Pembaur v. Leis, 1 Ohio St.3d 89 (Ohio 1982) (abuse-of-discretion implies unreasonable or arbitrary conduct)
- Bechtol v. Bechtol, 49 Ohio St.3d 21 (Ohio 1990) (trial court as factfinder may accept or reject witness testimony)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) (manifest weight requires some competent, credible evidence)
- Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296 (Ohio 1992) (admission of evidence reviewed for abuse of discretion)
- Pater v. Pater, 63 Ohio St.3d 393 (Ohio 1992) (appellate deference to trial court custody determinations)