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.
E. RANDAZZO, Attorney at Law, for Appellee.
CHANDRA MUSTER, Attorney at Law, for Children.
PHILLIPS, Guardian ad Litem.
DECISION AND JOURNAL ENTRY
J. CARR, Judge.
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
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
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.
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
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.
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.
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.
Mother has appealed, raising five assignments of error for
OF ERROR I
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
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.
"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
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,  Father's counsel then
played conversations purported to be between Mother (and
sometimes Mother's husband) and the children that Father
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.
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
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.
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.
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
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 ...