DEAN H. WILKERSON, Plaintiff-Appellee, v. CHUN C. WILKERSON, Defendant-Appellant.
CASE NO. CA2013-06-089
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/31/2014
[Cite as Wilkerson v. Wilkerson, 2014-Ohio-1322.]
M. POWELL, J.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DR2001-06-0775
Michael P. Masana, 220 South Monument Avenue, Hamilton, Ohio 45011-2836, for plaintiff-appellee
Samuel D. Borst, 3247 Camden Road, Eaton, Ohio 45320, for defendant-appellant
{¶ 1} Defendant-appellant, Chun C. Wilkerson (Mother), appeals from the judgment of the Butler County Common Pleas Court overruling her
{¶ 3} Father hired Dr. Michael Hartings, a psychologist, to provide expert testimony on his behalf. Dr. Hartings met with Father in March 2002, and met with Mother and the parties’ two children in November 2002. Dr. Hartings issued three reports. In his first report, dated April 24, 2002, Dr. Hartings reviewed Dr. Lee‘s report and was harshly critical of the methodology Dr. Lee used in preparing it. Dr. Hartings stated at one point in the report that “[Mother]‘s observed behavior strongly suggests a moderate to severe personality disorder, of the histronic [sic], borderline, or schizotypal type.” In his second report, dated April 28, 2002, Dr. Hartings evaluated Father‘s fitness to be a parent, and concluded “to a reasonable degree of psychological certainty * * * that [Father] is quite suitable and capable of parenting to his daughters in the role of a sole custodial parent.” In his third report, dated December 20, 2002, Dr. Hartings evaluated both parties and their children, and recommended that Father be awarded custody of the parties’ remaining minor child.
{¶ 4} In 2004, the trial court issued a parenting decree designating Father as the residential parent of the parties’ remaining minor child, granting Mother visitation with the child, and ordered Mother to pay child support to Father. This court affirmed the trial court‘s
{¶ 5} In 2005, Dr. Hartings was disciplined by the Ohio State Board of Psychology (OSBP) for the opinions he issued in the parties’ divorce proceedings that culminated in the 2004 parenting decree. The OSBP and Dr. Hartings reached a consent agreement in which Dr. Hartings admitted to being negligent in rendering an opinion in his April 24, 2002 report that stated Mother “engages in alienating behaviors and that she had a moderate to severe personality disorder of the ‘histrionic, borderline, or schizotypal type[,]’ ” without having first met and evaluated her. Dr. Hartings also admitted to being negligent in rendering an opinion about Father in his April 28, 2002 report in which he stated that Father “is capable of parenting his daughters in the role of ‘sole custodial parent[,]’ ” without having first met Mother and the children. Dr. Hartings agreed to a “permanent practice restriction” that prohibits him from “rendering in writing or by testimony any hypotheses, impressions, diagnostic suppositions, and other professional opinions or recommendations relative to the allocation of parental rights and responsibilities, parenting time, or parental capacity in any court or before any adjudicative body in the State of Ohio.”
{¶ 6} In 2008, Mother filed a motion to modify the shared parenting plan, in which she indicated an awareness of the 2005 disciplinary proceedings against Dr. Hartings. Specifically, Mother stated that the shared parenting plan “was issued as a result of the Court‘s reliance upon Dr. Michael H. [sic] Hartings, Ph.D., who provided fraudulent and inaccurate information to the Court, which information was relied upon by the Court in the determination of the Shared Parenting Plan.” The trial court overruled the motion, and this court upheld the trial court‘s decision on appeal. Wilkerson v. Wilkerson, 12th Dist. Butler No. CA2009-07-189 (Feb. 1, 2010) (Accelerated Calendar Judgment Entry).
{¶ 8} The magistrate denied Mother‘s
{¶ 9} Mother now appeals and assigns the following as error:
{¶ 10} THE TRIAL COURT ABUSED ITS DISCRETION, DENIED DEFENDANT-APPELLANT DUE PROCESS, WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT, OR ENGAGED IN PLAIN ERROR IN OVERRULING HER OBJECTION(S) TO THE DECISION OF MAGISTRATE. [sic]
{¶ 11} Mother argues the trial court abused its discretion, denied her due process, went against the manifest-weight-of-the-evidence, erred to her prejudice or engaged in plain error by failing to apply the “reasonable time” language of
{¶ 12} To prevail on a
{¶ 13} A motion for relief from judgment under
{¶ 14} Mother‘s principal contention throughout these proceedings is that she was entitled to relief from the 2004 parenting decree under the catch-all provision in
{¶ 15} “It is generally agreed that ’ * * * [a]ny fraud connected with the presentation of a case to a court is a fraud upon the court, in a broad sense.’ ” Coulson, citing 11 Wright & Miller, Federal Practice and Procedure (1973) 253, Section 2870.
{¶ 16} The Coulson court defined “fraud on the court” as follows:
“Fraud upon the court” is an elusive concept. “The distinction between ‘fraud’ on the one hand and ‘fraud on the court’ on the other is by no means clear, and most attempts to state it seem to us to be merely compilations of words that do not clarify.” Toscano [* * *].
One commentator, however, had provided this definition: ” ‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the independent action.” 7 Moore‘s Federal Practice (2 Ed.1971) 515, Paragraph 60.33. See, also, Serzysko v. Chase Manhattan Bank (C.A.2, 1972), 461 F.2d 699; Kupferman v. Consolidated Research & Mfg. Corp. (C.A.2, 1972), 459 F.2d 1072, 1078; Kenner v. Commr. of Internal Revenue (C.A.7, 1968), 387 F.2d 689, 691. Accord Hartford v. Hartford (1977), 53 Ohio App.2d 79, at pages 83-84, 371 N.E.2d 591.
{¶ 17} In Hartford at 84, the Eighth District Court of Appeals stated that “[e]xamples of fraud on the court justifying relief from judgment would include such ‘egregious misconduct’ as bribery of a judge or jury, or fabrication of evidence by counsel [citations omitted] or the prevention of an opposing party from presenting his case.” (Citations omitted.)
{¶ 18} Here, Mother argues that Dr. Hartings’ “fraudulent testimony” qualifies as a “fraud on the court” that should have entitled her to relief from the 2004 parenting decree under
{¶ 19} Initially, Dr. Hartings is not an “officer of the court,” nor can he be deemed analogous to one as Mother claims. The term “officer of the court” means “[a] person who is charged with upholding the law and administering the judicial system[;] [t]ypically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.” (Italics sic.) Black‘s Law Dictionary 1119 (8th Ed. 2004).
{¶ 20} Here, the trial court appointed a psychologist, Dr. Lee, to evaluate the parties and their children. Dr. Lee issued a report recommending treatment for all family members, particularly the parties’ younger child, and shared parenting of the parties’ children despite both parents’ objections. While Dr. Lee, as a court-appointed psychologist, might be deemed to be an “officer of the court,” Dr. Hartings could not be. Dr. Hartings was not appointed by the trial court but, instead, was hired by one of the parties in the action, namely, Father, to testify on Father‘s behalf as an expert witness, and therefore Dr. Hartings does not qualify as an “officer of the court.”
{¶ 21} Additionally, Dr. Hartings’ misconduct, assuming that it rises to the level of “fraud,” does not qualify as “fraud on the court,” as defined in Coulson, 5 Ohio St.3d at 15. In Coulson, the Ohio Supreme Court narrowly defined “fraud on the court” to ” ‘embrace only
{¶ 22} Dr. Hartings’ misconduct was of a serious nature as he rendered psychological opinions about Mother in his April 24, 2002 report and about Father in his April 28, 2002 report, without obtaining “substantial professional client information” on them. Particularly troubling was his failure to meet with Mother and evaluate her before issuing his April 24, 2002 report in which he opined that Mother engages in “alienating behaviors” and “had a moderate to severe personality disorder of the ‘histrionic, borderline, or schizotypal type.’ ” However, we do not view Dr. Hartings’ misconduct in this case as being equivalent to “that species of fraud which does or attempts to, defile the court itself,” or as constituting the type of fraud that prevents the “the judicial machinery” from “perform[ing] in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Coulson.
{¶ 23} Expert witnesses like Dr. Hartings do not provide testimony that is any more vital than that provided by lay witnesses. Our system makes allowances for untruthful testimony, which include the rules of cross-examination, impeachment, and making the trier of fact primarily responsible for determining the credibility of witnesses. The “judicial machinery” does not always function perfectly. However, we believe that in this case, the judicial machinery functioned well enough to allow the trial court to “perform in the usual manner its impartial task of adjudging” the parenting issues presented to it “for adjudication” despite Dr. Hartings’ misconduct. Coulson.
{¶ 24} In Wilkerson v. Wilkerson, 12th Dist. Butler Nos. CA2004-02-043, CA2004-02-046, 2005-Ohio-1236, ¶ 19-20, this court noted that the trial court gave “considerable weight” to Dr. Hartings’ report in making the best interest determination with respect to which of the
{¶ 25} Additionally, Dr. Hartings acknowledged in his April 28, 2002 report evaluating Father‘s fitness to be a parent that “[t]his evaluation falls short of a full custody evaluation because I have not had an opportunity to interview or examine [Mother] nor have I had an opportunity to interview and examine the children.” Thus, Mother and her counsel knew, by the time of the April 30, 2003 hearing held on the allocation of parental rights and responsibilities that Dr. Hartings had not met with or evaluated Mother or the parties’ minor children at the time Dr. Hartings issued his April 24, 2002 report. In fact, during her cross-examination of Dr. Hartings at the April 30, 2003 hearing, Mother‘s attorney was able to call attention to the fact that Dr. Hartings had determined in his April 28, 2002 report that Father was “quite suitable and capable of parenting to his daughters in the role of a sole custodial parent,” even though Dr. Hartings had not yet met Mother or the parties’ children by the time he issued that report, thereby suggesting that Dr. Hartings had formulated his opinion on Father‘s parenting abilities in an unfair manner. While this fact did not prevent the trial court from naming Father, rather than Mother, as residential parent of their remaining minor child,
{¶ 26} In Wilkerson, 2005-Ohio-1236 at ¶ 19, this court noted that while the trial court “did give considerable weight to Dr. Michael Hartings’ report in making the best interest determination,” the trial court “also considered the appropriate factors as required by
This guardian finds the report of Dr. Hartings to be interesting regarding his conclusions * * * to the effect that Parental Alienation Syndrome may exist due to [Mother‘s] continued attempts to undermine [Father]. Although this guardian certainly shares a concern about [Mother‘s] repeated and continued efforts to downgrade [Father], this guardian cannot share the conclusion that there may be Parental Alienation Syndrome in this case. If anything, [Mother‘s] ongoing statements regarding [Father] have had the opposite effect. * * * [S]he has essentially alienated herself from [the parties’ older child] to such an extent that the two can barely stand to be civil to each other. [The younger child] is much more neutral, but this guardian has observed an excellent bond between [the younger child] and [Father] and has seen no signs that she feels alienated from him.
A careful review of the GAL‘s report refutes any suggestion that it was somehow “tainted” by Dr. Hartings’ misconduct.
{¶ 27} We pointed out in Wilkerson that the trial court noted that, in addition to Mother‘s allegations of abuse throughout the marriage, she also expressed her belief that if Father is granted custody of their children, he might rape or kill them. Id. at ¶ 23. However, the trial court found that despite these serious allegations, there was no evidence that Father
{¶ 28} Admittedly, Dr. Hartings’ actions were not declared to constitute professional misconduct by the OSBP before the trial court made its determination as to which of the parties should be the residential parent of their remaining minor child. However, as demonstrated by the facts set forth above, it is clear that the trial court did not rely exclusively on Dr. Hartings’ expert testimony in arriving at its decision on this issue in its 2004 parenting decree.
{¶ 29} In addition to the foregoing, Mother failed to file her
{¶ 30} Here, notwithstanding our statement in Taylor that a 12-year delay in filing a motion under
{¶ 31} In light of the foregoing, Mother‘s assignment of error is overruled.
{¶ 32} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.