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Condon v. Rockich

Court of Appeals of Ohio, Ninth District, Summit

January 10, 2018

HEATHER CONDON Appellant
v.
RYAN ROCKICH Appellee

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2005-08-2704

          CORINNE HOOVER SIX, Attorney at Law, for Appellant.

          MARY E. RANDAZZO, Attorney at Law, for Appellee.

          CHANDRA MUSTER, Attorney at Law, for Children.

          JAMES PHILLIPS, Guardian ad Litem.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, Judge.

         {¶1} Appellee Heather Condon ("Mother") appeals from the judgment of the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms in part, and reverses in part.

         I.

         {¶2} Mother and Appellee Ryan Rockich ("Father") were married in 1996 and three children were born of the marriage: S.R (d.o.b. 5-10-00), H.R (d.o.b. 7-31-01), and E.R (d.o.b. 5-29-03). The parties divorced in 2006 and a shared parenting plan was made a part of the decree. It provided that Mother was the residential parent of the children at all times, provided parenting time for Father, and ordered Father to pay child support. In 2006, Mother filed notices of intent to relocate the children to New Jersey. Father did not file objections to the notices. Mother relocated to New Jersey with the children, completed nursing school, and subsequently remarried. Mother's husband has a son from a prior relationship whom he has custody of and is close in age to E.R. In 2010, Mother and Mother's husband also had a child together. During the course of the litigation, Father also remarried.

         {¶3} Mother and Mother's husband began experiencing marital problems and on several occasions separated, sometimes only briefly. Father maintained that Mother separated at least five times from her husband and brought the children back to Ohio on at least three occasions; however, Mother denied that assertion. Mother did acknowledge that in August 2011 she separated from her husband for 18 months. At that point, Mother asked Father to care for the children for the school year. Father enrolled the children in Barberton schools. Mother and Father entered into an agreed entry on March 27, 2012 reflecting that the three children would reside with Father for the 2011-2012 school year. On August 2, 2012, Mother and Father entered into another agreed entry providing that the three children would reside with Father for the 2012-2013 school year and that Father would be relieved of paying child support for that time period. In part, Mother blamed her instability and marital discord on having Graves Disease, which is an autoimmune condition that causes overproduction of a thyroid hormone, which can cause mood swings and irritability. Mother was able to control the condition through medication.

         {¶4} On December 3, 2012, Father filed a motion seeking the reallocation of parental rights and responsibilities, modification of parenting time, and modification of child support. A magistrate issued a provisional order on February 21, 2013. Therein, the magistrate found that the parties' agreed entry from August 2, 2012, "in essence, designated [Father] as the residential parent of the children[.]" The magistrate ordered that the shared parenting plan would "remain in effect, except as modified" below. The magistrate designated Father as "the temporary residential parent" and the "temporary residential parent * * * for school purposes[.]" Mother was to have parenting time one weekend a month in Ohio and the standard parenting time schedule applied to holidays, days of special meaning, and summer vacation.

         {¶5} Beginning in 2014, the matter proceeded to trial. However, the litigation was contentious and prolonged. At one point, Mother was limited to supervised visitation. A guardian ad litem ("GAL") was appointed, and the children also received counsel when it was discovered their wishes conflicted with the recommendation of the GAL. Moreover, two custody evaluations were conducted. Multiple hearings and trial dates were held, the last of which was not held until February 5, 2016. Numerous motions were filed in the interim, including motions seeking to hold Mother in contempt for violations of various orders. Ultimately, the GAL and both custody evaluators that testified at trial recommended that the children remain in Father's care.

         {¶6} In May 2016, the magistrate issued a decision, which the trial court adopted the same day. The magistrate found that it was in the children's best interests to terminate the shared parenting plan and name Father the sole legal custodian and residential parent. Mother was ordered to engage in counseling and Mother and children were to engage in family counseling. Mother was to continue with supervised visitation until unsupervised contact was suggested by her counselor, the family counselor, and the children's counselors. Subsequently, Mother was to have "Regular Parenting Time" as specified in the entry. For the period from December 3, 2012 through December 31, 2014, Mother was ordered to pay $1, 214.50 in child support and was ordered to pay $1, 346.83 in child support effective January 1, 2015. Additionally, Mother was ordered to pay $20, 840 for attorney fees and extraordinary costs due to Mother's violation of the civil rules, frivolous conduct, contempt, and discovery violations.

         {¶7} Mother filed timely objections to the magistrate's decision and requested transcripts of the hearings. After the transcripts were filed, Mother moved for an extension of time to file supplemental objections, which was granted. Thereafter, Mother filed supplemental objections. On January 4, 2017, the trial court issued an entry addressing the objections. The trial court concluded that shared parenting was not in the children's best interests and that Father should be named the sole residential parent and legal custodian. The trial court listed factors that it found important, including that the parties were unable to communicate in a meaningful way, the children were well adjusted to living with Father, that Father was more likely to honor court ordered visitation, and that the GAL recommended that the children reside with Father. Additionally, the trial court increased the sanctions against Mother to $25, 000.

         {¶8} Mother has appealed, raising five assignments of error for our review.

         II.

         ASSIGNMENT OF ERROR I

         THE DECISION OF THE TRIAL COURT IN ALLOWING TAPE RECORDED CONVERSATIONS BETWEEN MOTHER, THE MINOR CHILDREN, AND MOTHER'S SPOUSE TO BE USED AS EVIDENCE AT TRIAL WAS A VIOLATION OF THE RULES OF EVIDENCE, PREJUDICIAL AND AN ERROR OF LAW[]

         {¶9} Mother argues in her first assignment of error that the trial court erred in allowing the audio tape recordings of Mother's and Mother's husband's conversations with the children to be used as evidence.

         {¶10} "Generally, this Court reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion." Pflaum v. Summit Cty. Animal Control, 9th Dist. Summit No. 28335, 2017-Ohio-4166, ¶ 11, citing Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 17. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "'In so doing, we consider the trial court's action with reference to the nature of the underlying matter.'" Pflaum at ¶ 11, quoting Tabatabai at ¶ 18.

         {¶11} At the initial trial date in February 2014, Father's counsel asked Mother various questions related to what she discussed with the children when she spoke to them, and what she allowed her husband to discuss with the children, including court proceedings, financial and litigation costs, as well as whether she undermined or spoke negatively about Father. Largely without objection, [1] Father's counsel then played conversations purported to be between Mother (and sometimes Mother's husband) and the children that Father had recorded.

         {¶12} Those recordings were also discussed at the May 21, 2015 hearing. Therein, Mother acknowledged that at the prior hearing she had admitted to: discussing the case with the children, discussing litigation costs with the children, telling H.R. to tell the magistrate certain things, allowing her husband to talk to the children about court proceedings, and undermining Father's relationship with the children. There were no objections raised to this line of questioning. Mother, without objection, made similar acknowledgements relative to the recordings at the September 28, 2015 hearing.

         {¶13} Finally, at the November 18, 2015 hearing, several of the recordings were played for Dr. Richard Rynearson, a clinical psychologist who co-authored the second custody evaluation. The report based on the second custody evaluation recommended that Mother receive custody of the children. However, Dr. Rynearson admitted that he had not listened to the audio recordings provided by Father but noted that from his observations any alienation by Mother was not "particularly obvious." Dr. Rynearson acknowledged that if Mother admitted to undermining Father, alienating Father, and discussing the litigation with the children that would be important for him to know and to consider in rendering an evaluation. Several of the audio recordings were then played for Dr. Rynearson without objection. After hearing the recordings, Dr. Rynearson agreed that it was a mistake not to listen to them prior to issuing a recommendation. The GAL then asked, without objection, whether, after hearing the recordings, his recommendation had changed. Dr. Rynearson responded that he would have to think about it. The magistrate then asked, without objection, whether, "based upon all the audio recordings and the statements that if you perceive them to be true * * * would your recommendation you've made to the Court change[?]" Dr. Rynearson indicated it would and that he would recommend that the children continue to live with Father.

         {¶14} At the final date of the hearing, during the admission of the exhibits, Mother's counsel objected to the admission of the audio recordings as an exhibit. Counsel asserted she was "maintaining] [her] earlier objection." Counsel noted she was not representing Mother at the time of the original objection, but from her review, she believed "the objection had to do with whether it was an authentic original production of the recording, and whether that recording had or had the potential to be manipulated." Father's counsel replied that the clips were offered for impeachment and asserted that Mother had authenticated her voice. Father's counsel also noted that all parties were provided with the entire recording. Additionally, Mother objected to the transcript of the audio recording being admitted as an exhibit. The magistrate overruled Mother's counsel's objections.

         {¶15} Following the issuance of the magistrate's decision, Mother filed objections related to the audio recordings. In her supplemental objections, Mother argued not only that the audio recordings were improperly admitted into evidence, but also objected to the use of the audio recordings at trial. Mother argued that the recordings were not admissible because the record was devoid of any foundational questions related to authentication necessitated by Evid.R. 901(A). Additionally, Mother argued that the use of the recording was impermissible hearsay and that the use of the recordings violated federal law and state law as they were obtained without consent of Mother or Mother's children.

         {¶16} We conclude that Mother has not properly preserved her arguments for appeal. During trial, Mother only raised a single objection to the playing of one of the recordings, arguing that that particular clip was not being used for impeachment. No other objections to the playing of the recordings were made at the time they were played. Mother also did not object to the questioning at subsequent hearings that related to the playing of the recordings. Instead, at trial, Mother only objected to the admission of the recordings as an exhibit, and only on the basis that she was not sure the recordings were complete and had not been manipulated.

         {¶17} While Mother included the arguments she raises on appeal in her supplemental objections, this Court has stated that "[t]he filing of a written objection to the decision of a magistrate is not a substitute for the obligation to object to a purported error at the time of its occurrence." In re M.B., 9th Dist. Lorain Nos. 11CA010060, 11CA010062, 2012-Ohio-5428, ¶ 11. "Indeed, '[t]he contemporaneous objection rule is fundamental to our jurisprudence.'" Id., quoting Steward v. Norris Bros. Co., Inc., 8th Dist. Cuyahoga No. 53540, 1988 Ohio App. LEXIS 908, *1 (Mar. 17, 1988). "The rule serves the interest of justice because it allows for the correction of many defects while they are readily curable, as well as it encourages the elimination of delay and the ...


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