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Mary Ann v. Patrick Mcdonald

February 4, 2013

MARY ANN MCDONALD, NKA FULTON, PLAINTIFF-APPELLEE,
v.
PATRICK MCDONALD, DEFENDANT-APPELLANT.



CIVIL CASE FROM COMMON PLEAS COURT, DIVISION OF DOMESTIC RELATIONS

The opinion of the court was delivered by: Abele, J.

Cite as McDonald v. McDonald,

DECISION AND JUDGMENT ENTRY

{¶1} This is an appeal from a Highland County Common Pleas Court, Division of Domestic Relations, judgment finding Patrick McDonald, appellant below and appellant herein, in contempt of a divorce decree and ordering him to pay one-half of the parties' minor children's uninsured dental expenses and one-half of a magnetic resonance imaging (MRI) bill.

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"WITHOUT EXPERT TESTIMONY THE EVIDENCE BEFORE THE COURT ON DENTAL EXPENSES WAS INSUFFICIENT FOR THE COURT TO ORDER THE DEFENDANT TO PAY ONE HALF AND AN ABUSE OF DISCRETION BY THE COURT."

SECOND ASSIGNMENT OF ERROR:

"THE COURT COMMITTED ERROR BY ORDERING THE

DEFENDANT TO PAY DENTAL EXPENSE[S] WHEN THE

DECREE OF DIVORCE PROVIDED [F]OR THE PAYMENT OF MEDICAL EXPENSES."

THIRD ASSIGNMENT OF ERROR:

"THE COURT ABUSED ITS DISCRETION IN ORDERING THE DEFENDANT TO PAY ONE HALF OF THE DENTAL EXPENSES AND WAS PREJUDICIAL TO THE DEFENDANT."

{¶3} On May 23, 1996, the trial court granted appellant and Mary McDonald nka Fulton, plaintiff below and appellee herein, a divorce. The divorce decree provided that "[a]ll medical expenses above $100.00 per year per child and not insured shall be paid equally (50/50) by the parties."

{¶4} On April 13, 2011, appellee filed a motion that requested the court to find appellant in contempt for failing to pay one-half of the children's uninsured dental expenses and one-half of a MRI bill.

{¶5} At the hearing regarding appellee's contempt motion, appellant asserted that the divorce decree requires him to pay one-half of the children's uninsured "medical expenses" and that the phrase "medical expenses" does not include dental expenses. He further argued that appellee did not present any evidence that the dental expenses were indeed necessary. Appellant admitted, however, that he is responsible for one-half of the MRI bill.

{¶6} Appellee testified that at the time of the divorce decree, she carried both medical and dental insurance for the children and that the decree ordered her to continue to carry insurance for the children. She stated that one of the children required orthodontic treatment because "her teeth were pinched in the front," "[s]he had a severe overbite," and one of her teeth was "up in the gum."

{¶7} Appellant objected to appellee's testimony regarding the necessity of the dental procedure. He argued that appellee needed to present expert testimony to demonstrate the necessity of the procedure.

{¶8} The magistrate overruled appellant's objection and explained that appellee "can testify to what the teeth looked like" and why "she sought treatment." Appellee then testified that another child required braces because the child "had a gap in the front that needed to be pulled together and she had another tooth that wasn't coming in right." Appellee stated that between 2006 and 2008, she sent copies of all the bills to appellant, but that the appellant refused to pay his share.

{ΒΆ9} After appellee presented her evidence, appellant's counsel sought to call appellee's counsel as a witness. The magistrate, however, refused to permit appellant's ...


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