Allgeier v. AllgeierAllgeier v. Allgeier
Kornman Law Offices, LLC, Sharon A. Kornman, 731 S. South Street, P.O. Box 1041, Wilmington, Ohio 45177, for defendant-appellee
O P I N I O N
HENDRICKSON, J.
{¶1} Plaintiff-appellant, Vincent J. Allgeier, appeals a decision of the Clinton County Court of Common Pleas, Domestic Relations Division, regarding evidentiary and custody matters. For the reasons set forth below, we affirm the decision of the domestic relations court.
{¶2} Vincent and defendant-appellee, Dayle A. Allgeier, were married in May
{¶3} The allocation of parental rights and responsibilities was a significant point of contention between the parties during the pendency of the proceedings. The record indicates that Christopher is a special needs child, and Vincent and Dayle had differing views regarding how to address his developmental challenges. As a result, each party desired full custody of the children.
{¶4} The trial court appointed a guardian ad litem, and Dayle moved the court for an order requiring the parties to submit to psychological evaluations to assist in the court‘s custody determination. The magistrate appointed Dr. William Kennedy, a clinical psychologist, to examine the parties. Dr. Kennedy prepared a written report and testified at the final divorce hearing on September 22, 2008. Based upon his evaluation, he recommended that Dayle be designated residential parent and legal custodian of the children. The guardian ad litem had recommended that custody be awarded to Vincent.
{¶5} On October 31, 2008, Vincent filed a motion to strike Dr. Kennedy‘s testimony. Vincent argued that Kennedy‘s testimony was improper because it was based on data provided by the parties which was not admitted into evidence at the hearing. In its February 19, 2009 decision, the magistrate overruled Vincent‘s motion to strike and designated Dayle as the childrens’ residential parent and legal custodian. Vincent was awarded parenting time with the children each week.
{¶6} Vincent filed an objection to the magistrate‘s decision, challenging the denial of his motion to strike. His objection was overruled by the trial court in its August
{¶7} Vincent appeals the trial court‘s decision overruling his objection, raising two assignments of error for our review.
{¶8} Assignment of Error No. 1:
{¶9} “THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT‘S MOTION TO STRIKE THE PSYCHOLOGICAL CUSTODY EVALUATION AT TRIAL AND LATER RELIED ON THE REPORT IN DETERMINING THE RESIDENTIAL PARENT OF THE MINOR CHILDREN.”
{¶10} In his first assignment of error, Vincent contends that the trial court erred in overruling his objection to the magistrate‘s denial of his motion to strike Dr. Kennedy‘s testimony. Vincent argues that Kennedy‘s testimony was inadmissible because his opinion relied on several sources provided by the parties which were not admitted into evidence. These sources included: 1) a Children‘s Hospital evaluation of Christopher; 2) individualized education programs from Christopher‘s school; 3) a letter written by Dayle‘s father; 4) photographs; 5) the guardian ad litem‘s report; 6) information regarding school performance; and 7) journal entries written by Dayle. Vincent claims that Dr. Kennedy‘s reliance on these sources violated the dictates of
{¶11} A trial court‘s decision granting or denying a motion to strike is reviewed on appeal under an abuse of discretion standard. Madison Cty. Bd. of Commrs. v. Bell, Madison App. No. CA2005-09-036, 2007-Ohio-1373, ¶86. An abuse of discretion is more than error of law or judgment; it requires a finding that the trial court‘s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219. The admission of evidence, including expert testimony, is likewise within the discretion of the trial court and will not be reversed on appeal absent a showing of an abuse of discretion. Williams v. Parker Hannifin Corp., Preble App. No. CA2009-09-025, 2010-Ohio-1719, ¶20.
{¶12}
{¶13} In this case, Dr. Kennedy testified that he relied on multiple sources of data in his custody evaluation, including the information provided to him by the parties. However, Kennedy testified that the “majority of the weight” relative to the formation of his recommendation was based on the information he had personally gathered. Kennedy testified that he interviewed Vincent and Dayle and observed their interactions with the children. He also administered several psychological tests to the parties. According to Kennedy, he did not consider the outside information until after he had the opportunity to meet with the parties and score their tests. Kennedy explained, “I want the impression that I gathered from the individual to be my impression, not to be biased in any way by the data or by someone else‘s experience with them. I need to incorporate that information into the actual evaluation, but I want my first impression to be my first impression, not somebody else‘s.”
{¶14} In overruling Vincent‘s objection, the trial court adopted the magistrate‘s conclusion that Dr. Kennedy‘s testimony was admissible because it was based primarily
{¶15} On appeal, Vincent argues generally that Kennedy‘s testimony was inadmissible based upon the Ohio Supreme Court‘s decisions in State v. Chapin (1981), 67 Ohio St.2d 437; and State v. Jones (1984), 9 Ohio St.3d 123. In both cases, the court determined that the experts’ opinion testimony was inadmissible under
{¶16} However, both Chapin and Jones are distinguishable from the instant case in light of Solomon, 59 Ohio St.3d at 126. In Solomon, the Ohio Supreme Court determined that because the expert witnesses had personally evaluated the defendant and based their opinions on their examinations, their testimony was admissible under
{¶17} Based on the supreme court‘s decision in Solomon, and upon a close review of Dr. Kennedy‘s testimony, we conclude that the trial court did not abuse its
{¶18} Assignment of Error No. 2:
{¶19} “THE TRIAL COURT ERRED BY DESIGNATING APPELLEE AS THE RESIDENTIAL PARENT AND LEGAL CUSTODIAN OF THE MINOR CHILDREN.”
{¶20} In his second assignment of error, Vincent challenges the trial court‘s adoption of the magistrate‘s decision designating Dayle as the childrens’ residential parent and legal custodian. Vincent argues that the magistrate failed to sufficiently state its findings regarding each element of
{¶21}
{¶22} Although Vincent challenges the trial court‘s adoption of the magistrate‘s custody determination, he did not raise this issue, even generally, in the context of his
{¶23} This court has consistently determined that if a party fails to object to a conclusion of law or finding of fact issued by a magistrate pursuant to
{¶24} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.
This opinion or decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/ROD/documents/. Final versions of decisions are also available on the Twelfth District‘s web site at: http://www.twelfth.courts.state.oh.us/search.asp