VANCE BRAMMER, PLAINTIFF-APPELLANT, v. SHANNON BRAMMER, DEFENDANT-APPELLEE.
CASE NO. 9-12-57
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
July 1, 2013
[Cite as Brammer v. Brammer, 2013-Ohio-2843.]
Appeal from Marion County Common Pleas Court Family Court Trial Court No. 06 DR 0119
Judgment Affirmed
Date of Decision: July 1, 2013
APPEARANCES:
Ted Coulter for Appellant
Kevin P. Collins for Appellee
{1} Plaintiff-Appellant, Vance Brammer (“Vance” or “Father“), appeals the judgment of the Marion County Court of Common Pleas, Family Division, terminating the parties’ shared parenting plan and naming Defendant-Appellee, Shannon Brammer, nka Rappe (“Shannon” or “Mother“) as the residential parent of the parties’ two sons. On appeal, Father contends that the trial court erred when it found that there was a change of circumstances warranting the termination of the shared parenting plan and when it named Mother as the residential parent. Father also claims the trial court erred in its admission of certain evidentiary exhibits and in its reliance upon the family service investigator‘s report. For the reasons set forth below, the judgment is affirmed.
{2} The parties were married on August 28, 1998, and had two children together: Hayden, born in October 2000, and Keegan, born in June 2003. They divorced in 2006, and the parties entered into a mutually developed shared-parenting plan. The parties lived in close proximity to each other and the plan called for them to exercise equal parenting time. Pursuant to the shared-parenting plan, each parent was designated the residential and custodial parent of the children during their individual periods of parenting time. The shared-parenting plan also specified that the children attend school in the River Valley School
{3} In January of 2010, Shannon filed a motion to modify the parties’ shared parenting plan because she had received a promotion and intended to relocate to Tennessee, where her fiance resided.1 She requested that she be named the residential parent for school purposes, and the children would reside with Vance in Ohio during the summer. Vance opposed this modification and he also filed a motion to modify, asserting that it was in the best interests of the children to remain in Ohio. Both parents wished to be named their children‘s residential parent for school purposes, and each parent expressed significant concerns with having the children reside with the other for the school year.
{4} Shannon believed that the Tennessee schools would be better able to deal with the special educational needs of their younger son, who had been diagnosed with Tourette‘s syndrome, ADHD. She also believed that she was more qualified to handle this son‘s medical needs, since she was a registered nurse. Vance worried that moving the children to Tennessee would cause their father-son relationships to suffer. There was also considerable evidence that the children were doing well in Ohio and were very close to many family and friends who lived nearby. The family services coordinator assigned to the case recommended
{5} The trial court granted Mother‘s motion and named her the residential parent for the school year. Vance appealed and requested a stay of the trial court‘s judgment pending the appeal. His motion for a stay was denied and the children resided with Mother and attended school in Tennessee during the August 2010-May 2011 school year.
{6} On May 31, 2011, this Court reversed the trial court‘s decision. See Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610 (3d Dist.) (hereinafter, “Brammer I“). We found that “the majority of the evidence * * * support[ed] keeping the children in Marion and naming Vance the residential parent for school purposes.” Id. at ¶ 54. “[T]here was no evidence presented, aside from Shannon‘s mere conjectures, to substantiate that the school in Tennessee would better serve her children than the school in Marion.” Id. at ¶ 26. We further stated that “we cannot find evidence in the record that supports uprooting the children from an environment where they are surrounded by family and friends simply to place them in a new state where the only people known to them are their mother, her fiance, and his children, with whom they have had only intermittent contact during the past two years.” Id. at ¶ 60. Although a court of appeals must defer to a trial court‘s discretion in determining these issues, we held
{7} Upon remand, the trial court rendered a new judgment entry, modifying the shared parenting plan and naming Vance the residential parent for school purposes pursuant to this Court‘s decision in Brammer I. Shannon was ordered to release custody of the children to Vance on August 20, 2011, so that the children could return to Ohio for the 2011-2012 school year.
{8} Shortly after this Court‘s decision in Brammer I, Shannon filed a motion to modify parental rights and responsibilities, alleging that there had been a change in circumstances. She later filed an amended motion to modify parental rights and responsibilities and to terminate the shared parenting plan, pursuant to
{9} A three-day hearing was held on April 4 and 5, 2012, and June 5, 2012. The trial court heard testimony from: Shannon and Vance; Jennifer Yanka, the Family Services Coordinator (“Ms. Yanka” or “the FSC“); Shannon‘s new husband (stepfather); Vance‘s girlfriend; Vance‘s brother; a psychiatrist and psychologist who have worked with the children; an intervention specialist from
{10} After hearing all of the evidence, the trial court found that there had been a significant breakdown in communications between the parties, and that this was a change in circumstances that had resulted in an adverse impact on the children. Specifically, the trial court stated that:
[C]ommunication has become ineffective and often times vitriolic. Evidence shows that the children have become the messengers of information that should be relayed between the parties. The evidence also shows that the children no longer have the benefit of both parents making decisions about their education and healthcare. The children have been adversely impacted as a result.
(Sept. 12, 2012 J.E., p. 10) The trial court then found that it was in the children‘s best interest that the shared parenting decree be terminated and that “the harm likely to be caused by the maintenances of the shared parenting plan is outweighed by the termination of the shared parenting decree to the children.” (Id.)
{11} The trial court proceeded to analyze the factors with respect to the best interests of the children set forth in
{12} It is from this judgment that Vance now appeals, raising the following four assignments of error for our review.
First Assignment of Error
The trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence by admitting and relying on the family service investigator‘s erroneous/prejudicial report as substantive facts and determinative reasons to change custody rather than weigh all factual evidence and testimony.
Second Assignment of Error
The trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence by determining that there was a substantiated and sufficient change in circumstances pursuant to Ohio Revised Code 3109.04(E)(1)(A).
Third Assignment of Error
The trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence by determining that terminating the prior decree and naming [Shannon] as the custodial parent was in and necessary to serve the best interest of the children [sic] pursuant to ORC 3109.04(E)(1)(A), ORC 3109.04(E)(2)(C), ORC 3109.04(F)(1), and ORC 3109.04(F)(2) when failing to substantiate through findings the requisite threshold in ORC 3109.04(E)(1)(A)(iii).
The trial court erred in admitting [Shannon‘s] Exhibits 41-46, letters between counsel, and erred in not admitting [Vance‘s] Exhibits 109 and 110, compilations of texts between the parties.
Standard of Review
{13} Custody issues are some of the most difficult decisions a trial judge must make. Therefore, those decisions rest within the sound discretion of the trial court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260; Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). A court‘s decision regarding an award of custody is subject to reversal only upon a showing of an abuse of that discretion. Id.; Trickey v. Trickey, 158 Ohio St. 9, 13-14 (1952). A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No. 9-10-57, 2012-Ohio-45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 17-18 (2d Dist.), citing Black‘s Law Dictionary (8 Ed.Rev.2004) 11. “A reviewing court will not overturn a custody determination unless the trial court has acted in a manner that is arbitrary, unreasonable, or capricious.” Pater v. Pater, 63 Ohio St.3d 393 (1992).
{14} The reason for this standard of review is that the trial judge is in the best position to view the demeanor, attitude, and credibility of each witness and to weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially
[I]t is inappropriate in most cases for a court of appeals to independently weigh evidence and grant a change of custody. The discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record. * * *
(Citations omitted.) Miller, 37 Ohio St.3d at 74.
{15} In applying an abuse of discretion standard, a reviewing court is not free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No. 10-10-10, 2010-Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, (1989). When reviewing a change of child custody proceedings, an appellate court should be guided by the presumption that trial court‘s findings were correct. Miller at 74.
First Assignment of Error - Reliance on FSC‘s Report
{16} In his first assignment of error, Vance contends that the FSC erroneously acted as a guardian ad litem (“GAL“) when she did not meet the Marion Family Courts requirements to be a GAL, and that she failed to follow the applicable rules of court and guidelines pursuant to Loc.R22 and Sup.R.48 (pertaining to GALs). Vance argues that the trial court “prejudicially relied on the flawed reports” of the FSC rather than weighing all of the evidence and testimony.
{17} This Court has previously held that it is permissible for a trial court to rely on an investigator‘s assessments and recommendations so long as the report contains sufficient facts from which the trial court can draw a proper conclusion and the trial court does not rely exclusively on the report in reaching its conclusion. Brammer v. Meachem, 3d Dist. No. 9-10-43, 2011-Ohio-519, ¶ 39; Martin v. Martin, 3d Dist. No. 9-03-47, 2004-Ohio-807, ¶ 15-20. A family court has the authority to hire an investigator, such as Ms. Yanka, pursuant to
Prior to trial, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations. The report of the investigation and examinations shall be made available to either parent or the parent‘s counsel of record not less than five days before trial, upon written request. The report shall be signed by the investigator, and the investigator shall be subject to cross-examination by either parent concerning the contents of the report. * * *
{18} Local Rule 18 closely follows the language of the statute and states as follows:
18.01 The Court, pursuant to Ohio Revised Code Section 3109.04(C), may appoint Family Court Services, upon its own Motion or the Motion of a party, in order to complete an investigation.
18.02 An investigation may be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and request the Court to order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.
18.02 The report of the investigation and examination shall be made available to either parent and/or counsel of record not less than seven (7) days before trial. The report may be available at the settlement conference or final pre-trial provided that a final hearing has already been scheduled. The report shall be signed by the investigator, and the investigator shall be subject to cross-examination by either parent concerning the contents of the report. * * *
{19} The Marion County Family Court requires a person to be a licensed attorney in order to function as a GAL. See Loc.R. 22. Ms. Yanka is a certified GAL, but she is not a licensed attorney. Therefore, she is employed by the family court as a FSC, and she performed her investigation on this case in that capacity.
{20} Vance suggests that Ms. Yanka either was unqualified or she misunderstood her role. However, Ms. Yanka testified she had been employed by the Family Services Department of the Family Court for two years; she performed custody evaluations, participated in Early Neutral Evaluations, and mediated
{21} Vance bases most of his arguments on a single comment Ms. Yanka made when she was asked how long she had been a guardian ad litem. She responded that she had been a guardian ad litem for two years. (Tr. 392) Then she was asked if she had been appointed as a guardian ad litem on this case, and she replied that “I was.” (Id.) It is unclear if her comment was merely a misstatement, or if she was referring to the fact that her role in this case was similar to what it would be if she was acting as a guardian ad litem in another court system, or if she was inadvertently using the terms “guardian ad litem” and “family services counselor/investigator” interchangeably. However, there was no indication or evidence in the record that either Ms. Yanka or the trial court misunderstood or misrepresented her role in this case, or that she had acted improperly or outside of the limitations set forth in the statutes and local rules for a FSC. She was not under any obligation to follow the rules for a GAL because they were not applicable to her in her capacity in this case.
{22} Vance also contends that Ms. Yanka‘s report should be stricken from the record. Again, we find no support for that assertion, either under the law or in
{23} Vance also finds fault with many of the facts and conclusions contained in Ms. Yanka‘s report and her testimony, and he complains that the trial court erred in relying upon Ms. Yanka‘s report and recommendation rather than weighing “all of the evidence and credible testimony.” (Appellant‘s Br. 18) While it is true that the family court referenced some of Ms. Yanka‘s findings in the final judgment entry, there is no indication that the trial court relied exclusively upon these factors. The trial court heard testimony from numerous witnesses over three days. It was not necessary for the trial court to specify every single factor and witness that contributed to its final decision. Ms. Yanka was subject to vigorous cross-examination concerning her methodology and her
{24} Ms. Yanka understood her authority and duties under the Local Rule and the statutes. Her investigation and report satisfied the requirements of both. Vance offered no supporting evidence for his opinion that the investigation lacked objectivity or that the trial court improperly relied solely upon Ms. Yanka‘s testimony and report without thoroughly considering all of the evidence before it.
{25} Therefore, we find no merit in Vance‘s arguments that Ms. Yanka‘s report, her testimony, and the manner in which she performed her duties as a FSC, were in any way deficient or improper. Vance‘s first assignment of error is overruled.
Second Assignment of Error - Change of Circumstances
{26} In the second assignment of error, Vance submits that the trial court failed to substantiate through accurate findings that there was a sufficient change in circumstances necessary to satisfy the threshold requirement set forth in
{27} Shannon‘s response posits that the requirements for terminating a shared parenting agreement are set forth in
{28} In its judgment entry, the trial court noted that some appellate courts have ruled that a trial court need only to find that it is in the best interest of the child in order to terminate a shared parenting order when a motion is filed pursuant to
{29} Some of the discrepancy concerning which standard to apply arises because there are at least four sections of the Revised Code that address the issue of modification and termination of parental rights and responsibilities in sole custody and/or shared parenting situations:
R.C. 3109.04(E)(1)(a), which requires a court to find a change in the circumstances of the child, residential parent, or either parent subject to the shared-parenting decree before modifying a decree allocating parental rights and responsibilities; R.C. 3109.04(E)(2)(a), which permits parents to jointly modify the terms of a shared-parenting plan by filing the modifications with the court, if the court finds that the modifications are in the best interest of the child; R.C. 3109.04(E)(2)(b), which permits a court to modify the terms of a shared-parenting plan upon its own motion if the court finds that the modifications are in the best interest of the child; and R.C. 3109.04(E)(2)(c), which permits the termination of a shared-parenting plan if the court finds that shared parenting is not in the best interest of the child.
{30} The determination as to which section of the Revised Code is applicable in a particular case is contingent upon the factual posture of the case and depends upon whether a court is dealing with a sole legal custodian or a shared parenting arrangement; whether the court is seeking to modify a shared parenting decree in the context of the status of the residential parent or legal custodian versus modification of a “term” of a shared parenting plan; and, whether a court is addressing issues concerning a modification or a termination. See Fisher v. Hasenjager, ¶¶ 31-34. The Ohio Supreme Court attempted to clarify the matter in its decision in Fisher. However, interpretive confusion still remains because the majority opinion did not explicitly define its understanding as to whether the plan in question had been terminated or modified as to the designation of residential parent and legal custodian. See Fisher, supra (Pfeifer, J., dissenting), ¶¶ 38-60; Change of Circumstances in Shared Parenting Cases Since Fisher v. Hasenjager, 25 No. 1 Ohio Dom. Rel. J. NL 1 (2013). Furthermore, the Ohio Supreme Court did not analyze the application of
{31} The first section in question,
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds,
based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child. R.C. 3109.04(E)(1)(a).
{32} Under this provision, trial courts must determine three things: “(1) Has there been a change in circumstances? (2) Is this modification in the best interest of the child? (3) Will the harm that will result from the change be outweighed by the benefits that will result from the change?” Clark v. Smith, 130 Ohio App.3d 648, 653 (3d Dist. 1998); Logan v. Holcomb, supra.
{33} Conversely, Shannon points us to
(E)(2) In addition to a modification authorized under division (E)(1) of this section:
***
(c) The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best in interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, * * * upon the request of one or both parents, that shared parenting is not in the best in interest of the children.
{34}
{35} Under the plain language of the statute, it would appear that Section (E)(2)(c) would be applicable in this case in that Shannon has clearly requested termination of the entire shared parenting arrangement. However, the trial court was mindful of the Ohio Supreme Court majority‘s statements in Fisher concerning how the designation of a residential parent and legal custodian was “critical to the life of a child” and holding “that a modification of the designation of a residential parent and legal custodian of a child requires that a ‘change in circumstances’ has occurred, as well as a finding that the modification is in the best interest of the child.” Fisher at ¶¶ 36-37. Therefore, the trial court analyzed the facts in this case by the more stringent requirements set forth in
{36} Under the facts in this particular case, the end result does not change regardless as to which section of the Ohio Revised Code is utilized. As stated above, it would appear that Section (E)(2)(c) would be applicable in this case, as Shannon has requested a termination of the entire shared parenting arrangement, and the trial court found that the continuation of the shared parenting arrangement
{37} Therefore, based on the above, the trial court did not err in terminating the parties’ shared parenting plan. The second assignment of error is overruled.
Third Assignment of Error —
Residential Parent/Best Interest of Children
{38} Vance argues that the trial court erred in finding that it was in the best interests of the children to name Shannon as the residential parent. He complains that the trial court failed to substantiate its decision with specific findings of facts and conclusions of law in response to his request pursuant to
{39} After deciding to terminate a shared parenting plan, “the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under
{40}
(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the child‘s parents regarding the child‘s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child‘s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child‘s interaction and interrelationship with the child‘s parents, siblings, and any other person who may significantly affect the child‘s best interest;
(d) The child‘s adjustment to the child‘s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; * * *
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
{41} In determining the best interest of a child under
{43} In this case, the trial court issued a thorough and detailed eighteen-page judgment entry in which it outlined its findings of facts and conclusions of law under all of the applicable statutory sections, including six pages devoted to an analysis of the “best interest” of the children under
The Court had the opportunity to see, hear and observe each witness who testified. The Court also considered the credibility and the weight of each witness‘s testimony. The Court in making its decision reviewed the voluminous record and more than two hundred exhibits. The Court considered the weight and the relevance of all of the evidence. The Court does not
make findings of fact as to each and every piece of evidence and the omission of the Court to make such findings does not suggest that the Court did not consider the facts in arriving at the ultimate decision. The Court must look at the sufficiency of the evidence, the credibility of the witnesses and the weight given the testimony when addressing contested issues.
(Sept. 26, 2012 J.E.) Vance‘s argument about the trial court‘s failure to make separate findings of fact is not well taken.
{44} Also, Vance‘s assertion that the trial court failed to properly consider the factors under
{45} Likewise,
{47} When reviewing a trial court‘s best interests analysis, we need only address two items: “(1) [whether] the trial court considered all of the necessary factors listed in
{49} Competent, credible evidence supported the trial court‘s finding that Shannon facilitated visitation and offered Vance additional time and encouraged him to visit the children in Tennessee and watch their games and participate in other school related activities. Vance, on the other hand, did not afford Shannon those same opportunities. (J.E., p. 15) Vance was considering changing the school the boys would attend and did not share that information with Shannon. Vance also did not share information with Shannon about Keegan‘s IEP, about parent-teacher conferences, and about Hayden‘s graduation ceremony at the end of the school year. He did not communicate to her that the boys were taking music lessons in Marion, and never told her that there had been several times when Hayden had “emotional breakdowns” at school. (Tr. 542) He did not inform her that the boys were beginning psychological treatments with Dr. Stark or anything about what went on during the treatments, or that Keegan was going to begin treatment with Dr. Spare. When Shannon came to Ohio to pick the boys up for her previously scheduled two-week summer visitation, Vance informed her that he had subtracted individual visitation dates from her allotted two-week vacation time
{50} The evidence further demonstrated that the boys had a very good relationship with their stepfather and step-siblings, and that they enjoyed doing many activities with them. Shannon testified about the boys’ activities in the school and community. “They were involved in a lot of activities at school, they like the Lego Club, they had a reading club, they were involved in Boy Scouts which is done through the school.” (Tr., p.509, 514-515) The boys went camping, canoeing, and spelunking. (Tr.,p.510-511) They attended a Tennessee Titans football game, presented the colors at the Nashville Predators hockey game, and participated in charity fundraising events. (Tr., p.510-511) Shannon participated in these activities as well. (Tr., p.511-512) Hayden played tackle football for the Blaze in a large football league. (Tr., p.512) Both boys played flag football in the spring. (Tr., p.512) They went to a day camp for football, went to the “Y” twice a week, and had made many friends. (Tr., p.514) There was evidence that the children were doing well in school, and that their educational needs were being met, both in Tennessee and in Ohio.
{51} Vance points to several portions of the record claiming to demonstrate that the termination of the shared parenting plan and naming of
{52} The trial court was well within its discretion to grant greater weight to the testimony of Shannon and her witnesses over the testimony of Vance and his witnesses. See Sellers v. Sellers, 4th Dist. No. 09CA45, 2010-Ohio-3712, ¶ 17 (“We observe that appellant‘s main complaint appears to be that the trial court did not credit her witnesses and their testimony. As we have noted, however, credibility, especially in child custody matters, is a matter reserved for the trier of fact and we will not second-guess credibility determinations.“). It may be expected that each party and that party‘s relatives/friends/local educators would naturally possess a certain amount of bias. The FSC was probably the one witness that did not have any connections to either party, and it likely explains why the
{53} We find that there is considerable evidence in the record in support of the trial court‘s determination that Shannon should be named the residential parent and legal custodian of the children. Accordingly, the trial court‘s decision was not an abuse of discretion and we overrule Vance‘s third assignment of error.
Fourth Assignment of Error — Admission of Evidence
{54} In his final assignment of error, Vance claims that the trial court abused its discretion when it admitted Defendant‘s Exhibits 41-46, because they were letters signed by Vance‘s counsel and sent to Shannon‘s counsel and were inadmissible under
{55} Trial courts have broad discretion in determining whether to admit or exclude evidence. Moore v. Moore, 182 Ohio App.3d 708, 2009-Ohio-2434 (3d Dist.), ¶ 15. Accordingly, a trial court‘s ruling on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion. Id.
{56} Because of the voluminous amount of exhibits, a separate date was set up to review the admissibility of the exhibits that weren‘t jointly stipulated as being admissible by the parties. (See June 26, 2012 Tr.) The record shows that each party‘s counsel had opportunity to offer arguments for and against admissibility concerning the exhibits that were in dispute and then the trial court considered the reasons concerning admissibility. We do not find that the process or the results demonstrated an abuse of discretion.
{57}
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose * * *.
{58} Defendant‘s Exhibits 41-44 were letters between the parties’ attorneys from December 2011, January 2012, and March 2012. However, however, they appear to be primarily communications concerning visitation time, scheduling, and discussions as to which parent would have the children when
{59} In its final judgment entry, the trial court stated the following concerning its ruling on these letters.
At trial [Vance] admitted that he penned parts of the letters. The Court upon review notes that some of the language in the letters is similar if not identical to that in [Shannon‘s] exhibits 21, 22, 24, 25, & 26, which were admitted as communications between the parties. The Court finds, therefore, that Defendant Exhibits 41-46 are admitted as statements made by a party. However, references in the letters as to compromise shall be redacted and excluded.
(J.E., p.4) Counsel for the parties had the opportunity to confer about what parts of these exhibits should be redacted, and anything that would be prohibited by
{61} Vance argues that these texts (which he described as “data dumps” off of his cell phones) would support his claims that he communicated with Shannon, and that Shannon‘s assertion that the compilations of texts between the parties were incomplete and not authenticated was inaccurate. During his testimony, he was shown the exhibits and he identified them as “various texts between her and I about things like, hey are you getting on Skype tonight, are we meeting in Lagrange, or, you know, about the kids, just further substantiation [to show cooperation and my communication].” (Tr. 776) His testimony then continued to discuss many of the times when he claimed he was cooperating and communicating with Shannon. (Id.)
{62} Vance is correct in his contention that Shannon‘s attorney did not object to the discussion of these two exhibits during the hearing, but he did object at the hearing to determine what exhibits were admissible. He claimed that the copies of the telephone text messages were not authenticated and were “defective, it‘s like it had been moved on the copier or something, it was stretched and blurred and not legible.” (June 26, 2012 Tr. 13).
{64} We do not find that the trial court abused its discretion in its decision concerning the admission and exclusion of evidence. The fourth assignment of error is overruled.
{65} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr