Ijakoli v. AlungbeIjakoli v. Alungbe
Aрpeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 15, 2022
Legal Aid Society of Greater Cincinnati and Kristin Riebsomer, for Plaintiff-Appellee,
Gabriel Alungbe, pro se.
{¶1} Defendant-appellant Gabriel Alungbe appeals two evidentiary rulings made by the trial court in a custody-modification hearing. Specifically, he challenges the trial court‘s decisions denying his motion to cоmpel the production of the guardian ad litem‘s file and excluding his approximately 1,000 pages of documentary evidence. For the following reasons, we affirm the trial court‘s judgment.
I. Facts and Procedure
{¶2} Alungbe and plaintiff-appellee Elizabeth Ijakoli were married in 2009 and subsequently had two children together. In 2017, Ijakoli filed for divorce. Two years later, the trial court issued a divorce decree and designated Ijakoli as the residential parent of their children. In the decree, Alungbe was granted weekly parenting time. The parties filed numerous postdecree motions to enforce and modify the decree, to modify parenting time, for psychological testing, and for contempt. While Alungbe periodically had legal representation, he was pro se at all times relevant to this appeal.
{¶3} In August 2020, Alungbe filed a postdecree motion to modify the custody order and alleged that their children were being neglected. The following week, Ijakoli filed postdecree motions to hold Alungbe in contempt of the decree and to modify parenting time. Days later, Alungbe moved for an expedited hearing on а motion to modify the “parenting order to grant Defendant full custody” of the children.
{¶4} Additionally, Alungbe requested the appointment of a guardian ad litem (“GAL“) for the children. The following month, the magistrate found that a GAL was necessary under “Local Rule Title X” and appointed one for the children. The magistrate tasked the GAL with investigating and reporting to the court the best
{¶5} In February 2021, Alungbe moved the court to terminate the GAL. In March, Alungbe “e-filed” approximately 1,000 pages of documents. In response, Ijakoli moved to strike his filings under
{¶6} In June 2021, Alungbe subpoenaed the GAL to “produce your whole file, including all notes, documents and memoranda reviewed and used.” Weeks later, he filed a motion to compel the GAL “to produce his file, reports, letters, documents, and notes usеd in the preparation of his report filed in this matter.” In response, the GAL moved to quash the subpoena and argued that Local R. 10.9 of the Court of Common Pleas of Hamilton County, Domestic Relations Division (“Loc.R. 10.9“) and former
{¶7} The trial court held a hearing оn Alungbe‘s motion to compel the GAL to produce his records, the GAL‘s motion to quash Alungbe‘s subpoena, and the issue of a change in circumstances relevant to Alungbe‘s motion for a custody modification. After Alungbe and the GAL presented arguments regarding the GAL‘s records, the trial court denied Alungbe‘s motion to compel and granted the GAL‘s motion to quash Alungbe‘s subpoena.
{¶8} Next, the trial court considered whether there was a change of circumstances warranting custody modification. Ijakoli informed the trial court that
{¶9} Alungbe argued that medical, educational, and emotional neglеct of the children constituted a change of circumstances warranting a custody modification. With Ijakoli on the stand, Alungbe questioned her about a range of topics, including the children‘s supervision, education, and medical needs. In the midst of his questioning, Alungbe asked the court for permission to introduce his evidence into the record. The trial court refused and answerеd, “[I]f you‘re going to try to lay a thousand pages of documents here that counsel didn‘t receive until last night at 5:00, I‘m not going to allow it.”
{¶10} Alungbe called the GAL to the stand and questioned the veracity of the GAL‘s report. Alungbe requested permission to present evidence to refute the report. The trial court denied his request and instructed him to “question the guardian ad litem on his findings in his report.” Lаter, Alungbe asked the GAL whether he knew that Alungbe‘s daughter “was not on video Zoom for a month?” The GAL was unaware. Alungbe asked to play a video of the class, explaining
There are points that [the GAL] raised here that are not true. And if I can now refer to the exhibit, you know, if we can have it admitted into evidence, and I can refer to that and call your attention to that.
It is very, very hard because I have to say this without then showing anything, you know.
If I can refer to this exhibit so you see things. You know, it is hard for me to talk, oh, you want me to do that in my testimony when I testify. Because it‘s hard.
{¶12} After some dialogue, the trial court confirmed that Alungbe sought to establish educational neglect. In response, Alungbe told the trial court that he had evidence of the GAL‘s inconsistency and bias “documented in the exhibits,” and asked to “go through them one by one, [to] demonstratе that.” The trial court refused:
No. We‘re not going to go through one by one because this—I repeat myself again. This hearing was set for a one-hour hearing. And I recognize that we got—we got started about 20 minutes late. But it‘s now after 11 a.m. And so far I‘ve heard nothing that supports a change of circumstance.
{¶13} Finally, Alungbe testified about his children‘s care, education, and health. At the conclusion of the hearing, the trial court found that Alungbe “failed to establish a change of circumstance as required by the statute,” and denied his motion to modify custody.
{¶14} The trial court entered judgment granting the GAL‘s motion to quash Alungbe‘s subpoena and denying modification because Alungbe “did not provide any convincing evidence that the children are being neglected in any manner.” In its entry, the trial court scheduled a “status conference on the remaining motions.”
{¶15} Alungbe appeals, challenging the trial court‘s evidentiary decisions in two assignments of error.
{¶16} Before reaching the merits of the assignments of error, Ijakoli maintains that the trial court‘s decision is not a final appealable order under
{¶17} In Ohio, appellate courts are empowered to review final orders or judgments of a trial court. Ohio Constitution, Article IV, Section 3(B)(2). Generally, an order or judgment is final if it falls into one of the categories of final judgments identified by
{¶18} Ijakoli‘s argument focuses on
{¶20} Under
{¶21} A “special proceeding” is a proceeding “specially created by statute” that did not exist at common law prior to 1853.
{¶23} We hold that the trial court‘s decision affected Alungbe‘s substantial rights. A decision affects a substantial right ” ‘if an immediate appeal is necessary to protect the right effectively. ’ ” Crown Servs. v. Miami Valley Paper Tube Co., 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, quoting Wilhelm-Kissinger at ¶ 7, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). We find an immediate appeal is necessary considering the substantial right аt issue and nature of the case. Indeed, it would be “inequitable and impracticable” to require Alungbe to postpone his appeal until the end of the postdecree litigation in this case. See Quesinberry, 2021-Ohio-4680, 185 N.E.3d 1136, at ¶ 29 (“Subjecting a party‘s postjudgment right to appeal to the question of whether the other party has sought relief in the trial court will inevitably cause delay and invite gamеsmanship.“).
{¶24} Ijakoli argues that the absence of a
Exclusion of Evidence
{¶25} In his first assignment of error, Alungbe maintains that the trial court erred when it excluded his 1,197 pages of evidence of alleged neglect. It appears that Alungbe attempted to submit approximately 1,000 pages of exhibits to this court. But we cannot consider evidence that was not made a part of the record of the proceedings below. State v. Zhovner, 2013-Ohio-749, 987 N.E.2d 333, ¶ 11 (3d Dist.), citing Deitz v. Deitz, 3d Dist. Union No. 14-11-06, 2012-Ohio-130, ¶ 8.
{¶26} We recognize that a trial court has broad discretion over the admission or exclusion of evidence, and to reverse a decision to exclude evidence we must find an abuse of discretion and proof of material prejudice. Gauthier v. Gauthier, 1st Dist. Hamilton No. C-210239, 2022-Ohio-541, ¶ 24, citing Hayes v. Durrani, 1st Dist. Hamilton No. C-190617, 2021-Ohio-725, ¶ 13. A trial court abuses its discretion when it “‘exercise[es] its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority. ‘” State v. Austin, 1st Dist. Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5, quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In оther words, an abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is made arbitrarily when “made without consideration of or regard for facts [or] circumstances.” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black‘s Law Dictionary 96 (5th Ed.1979).
{¶28} Rather than inspect the evidence, the trial court excluded all of Alungbe‘s evidence. While the exclusion rested on principles of fairness to the opposing party, the record suggests that Alungbe attempted to furnish his evidence months before the June hearing. Furthermore, the trial court failed to issue a case-management order establishing a deadline for Alungbe to turn over his evidence. We recognize the trial court‘s interest in its “ability to manage its docket so as to perform its work efficiently and diligently.” In re M/W Children, 1st Dist. Hamilton No. C-180623, 2019-Ohio-948, ¶ 33, citing In re E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, ¶ 8. But under these circumstances, an indiscriminate and wholesale exclusion of a party‘s evidence constitutes an arbitrary exercise of discretiоn. Therefore, we find the trial court abused its discretion when it excluded Alungbe‘s evidence.
{¶30} While the trial court excluded Alungbe‘s evidence, it directed Alungbe to question the witnesses and allowed him to refer to his evidence throughout his questioning. Indeed, the trial court informed Alungbe about the probative value of “live testimony of the witness here in the flesh.” Through his questioning, Alungbe successfully established that, during the pandemic, the children were left unsupervised at home while their mother went to buy groceries and their performance in school declined. Likewise, he established that their son was not taken to see a medical doctor for a sprained ankle. Further, Alungbe was able to challenge the veracity of the GAL‘s report‘s conclusion that there was no change in circumstances warranting a change of custody. Despite the trial court excluding his evidencе, Alungbe was able to present his case through testimonial evidence. Therefore, we find that the exclusion of his evidence caused no material prejudice.
{¶31} Alungbe maintains that the trial court‘s exclusion of his evidence violated his right to due process. Both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Due Course of Law provision of Article I, Section 16 of the Ohio Constitution, guarantee procedural due process, “that an individual be given an opportunity to be heard at a meaningful time and in a
{¶32} For instance, a trial court violated a party‘s right to procedural due process when the court refused to allow the party to call witnesses or “present[] any evidence in support of her case.” In re A.P., 3d Dist. Logan Nos. 8-20-17, 8-20-18, 8-20-19, 8-20-20, 8-20-21, 8-20-22, 8-20-23, 8-20-24 and 8-20-25, 2020-Ohio-5131, ¶ 17. In contrast, a party allowed to present “testimony and evidence” was given a meaningful opportunity to be heard and afforded due process. In re C.O., 8th Dist. Cuyahoga Nos. 99334 and 99335, 2013-Ohio-5239, ¶ 7.
{¶33} As discussed, Alungbe was able to present testimonial evidence during the hearing before the trial court, and therefore, was afforded a meaningful opportunity to be heard. As a result, we ovеrrule Alungbe‘s first assignment of error.
Access to the Guardian Ad Litem‘s Records
{¶34} In his second assignment of error, Alungbe argues that the trial court erred when it denied his motion to compel the production of the GAL‘s records. We review a trial court‘s decision regarding discovery issues for an abuse of discretion. Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 13
{¶35} Under Loc.R. 10.9(M) of the Court of Common Pleas of Hamilton County, Domestic Relations Division, a GAL “shall make no disclosures аbout the case or the investigation except in reports to the Court or as necessary to perform the duties of a guardian ad litem.” Likewise, former Sup.R. 48(D)(15)1 prohibited the GAL from making disclosures about the case or investigation. Under these rules, the trial court‘s decision was proper. The court, however, had the authority to “order disclosure of or access to the information that addresses the need to challenge the truth of the information received from the confidential source.” Sup.R. 48.03(F).
{¶36} Alungbe‘s need for the GAL‘s investigation file is unclear. Alungbe received a copy of the GAL report, which included a list of individuals with whom the GAL spoke during his investigation. At the hearing, Alungbe informed the court that access to the GAL‘s file was necessary to challenge the statement in the report that Alungbe “forced the doctor to give [him] a report to justify [his] position” of concern about the children‘s care. Later, Alungbe was able to question the GAL about his report, undercutting his need to access the information obtained by the GAL from confidential sources.
{¶37} Considering Alungbe‘s stated need for the GAL records and ability to quеstion the GAL about the basis of his report, the trial court‘s decision to deny Alungbe‘s motion to compel was reasonable. The trial court‘s decision was not an abuse of discretion. We overrule Alungbe‘s second assignment of error.
{¶38} The trial court arbitrarily excluded Alungbe‘s evidence at the hearing. While this was an abuse of discretion, Alungbe suffered no prejudice. Further, the triаl court properly denied Alungbe‘s motion to compel the production of the GAL files. We therefore overrule Alungbe‘s two assignments of error and affirm the trial court‘s judgment.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.