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Keen v. Wilson

Court of Appeals of Ohio, Eleventh District, Trumbull

June 17, 2019

STACY D. KEEN, Plaintiff-Appellant,
DANIEL E. WILSON, Defendant-Appellee.

          Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations Division, Case No. 2012 DR 00371.

          James D. Franks, (For Plaintiff-Appellant).

          Debora K. Witten, Witten & DeMatteis, Anthony G. Rossi and Brendan J. Keating, Guarnieri & Secrest, P.L.L., and Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., (For Defendant-Appellee).


          MARY JANE TRAPP, J.

         {¶1} Appellant, Stacy D. Keen ("Ms. Keen"), appeals from the judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, denying her motion for a new trial and adopting the magistrate's decision that terminated the parties' shared parenting plan for their two minor children and named appellee, Daniel E. Wilson ("Mr. Wilson"), as the sole residential parent.

         Substantive and Procedural History

         {¶2} Ms. Keen and Mr. Wilson had their first child ("D.W."), a son, in 2011. They married shortly over a year later, and the birth of their second child ("E.W."), a daughter, followed in the same year. They apparently lived together in Mr. Wilson's house for only a short time and spent much of the marriage separated and living in separate homes.

         {¶3} In September 2012, Ms. Keen filed a complaint for legal separation with children in the Trumbull County Court of Common Pleas, Domestic Relations Division, and Mr. Wilson filed a complaint for divorce. After much discord, the parties agreed to an amended complaint for divorce. A separation agreement and shared parent plan were attached to the final decree, which was not filed for over five months after the final hearing.

         {¶4} The agreement provided that neither parent would pay child support and acknowledged that Ms. Keen was relocating to Cuyahoga County with the children. In the shared parenting plan, the parties agreed they would alternate parenting time with the children every four days and that the residence for school purposes would be determined prior to D.W. beginning first grade.

         {¶5} Ms. Keen moved to Parma, Ohio, to live with her ex-husband, Joseph Bassett. They have three children together: two daughters, both adults, as well as a son who is a year or two older than D.W. Ms. Keen also has an older son who was born before her marriage to Mr. Bassett. Mr. Wilson also has two daughters, both under the age of eighteen, from a previous marriage.

         {¶6} After the final hearing, the case remained active before and after the final decree was filed. The guardian ad litem ("GAL") filed a contempt motion against Mr. Wilson for failing to pay her fees. Mr. Wilson then filed a motion to hold Ms. Keen in contempt for failing to abide by the terms of the parenting time schedule.

         {¶7} During a hearing on the GAL's fee motion before the magistrate on January 15, 2015, the magistrate found the parties had agreed to modify the shared parenting plan when D.W. was of school age, but there was no provision in the parenting plan as to the how the plan would be modified. A pretrial conference was scheduled to address this issue, but prior to the pretrial, both parties moved to terminate the shared parenting plan and to be named the residential parent. The magistrate reappointed the GAL and ordered her to continue her investigation and choose a counselor for the children. The magistrate further ordered the parties to continue the current parenting schedule and to meet at a fast food restaurant in Twinsburg to exchange the children.

         {¶8} During the two-year period in which the motions to terminate the shared parenting plan were pending, the parties and the GAL filed a bevy of motions. Mr. Wilson filed a motion to show cause claiming Ms. Keen had restricted telephone access. He also filed motion for an order appointing Dr. Lynn DiMarzio as counselor for the children, which the court granted at Mr. Wilsons' expense.

         {¶9} The GAL filed a motion to terminate Mr. Wilson's companionship/parenting time based on a report from Cuyahoga County Job and Family Services ("CCJFS"). CCJFS determined Mr. Wilson had told the children to allege that Ms. Keen's other child had inappropriately touched them when allegedly, it was Mr. Wilson's child who had done the touching. A similar allegation had been made against Ms. Keen's older children. In total, three investigations were conducted with no allegation of abuse substantiated for any party or the parties' children. The record reveals reports to the agencies were made by mandatory reporters.

         {¶10} The magistrate suspended Mr. Wilson's companionship time for a short period of time, ordered Dr. Robin Tener to perform a custody evaluation, and ordered continuing counselling with Dr. DiMarzio.

         Motions to Terminate the Shared Parenting Plan

         {¶11} Final hearing on the termination of the shared parenting plan was continually delayed for various reasons: the magistrate retired, and a new magistrate assumed the case; Dr. Tener, the custody evaluator, became unavailable for months due to unforeseen circumstances; and Ms. Keen filed a motion to show cause against Mr. Wilson for failing to abide by the magistrate's visitation order.

         {¶12} In August 2016, at a status conference, the magistrate issued a decision stating the parties had come to an agreement that D.W. would begin school in the Parma city school district. Companionship time was altered accordingly so that the children would spend the week with Ms. Keen and the weekends with Mr. Wilson. Trial was set for the beginning of December 2016.

         {¶13} But there was a further delay; the trial was postponed to May 2017, and on two different occasions orders were entered regarding changes in parenting time. After both parties filed for continuances of trial, the matter was finally heard on October 10, 11, and 12, 2017, and January 19, 23, and 24, 2018.

         The Testimony and Evidence During Trial

         {¶14} Dr. Tener submitted a 53-page report and testified as to the results of her custody evaluation. During 2016, Dr. Tener met with both parents individually and with the children, as well as the significant other members of Ms. Keen's household. Dr. Tener administered psychological tests and reviewed relevant information provided by the parties; however, she had not seen the parties or the children since November 2016.

         {¶15} As both parties acknowledged in their own testimony, which was reinforced by the testimony of the GAL, Dr. Tener found the largest problem between the parents was their inability to communicate. Dr. Tener recommended Ms. Keen become the sole residential parent with extended companionship time to Mr. Wilson, because she felt Ms. Keen would be more likely to facilitate communication and honor Mr. Wilson's parenting time. Dr. Tener felt the parties would benefit from dedicated, consistent usage of "OurFamilyWizard," a co-parenting application, which the magistrate had ordered them to use in June 2017.

         {¶16} Dr. DiMarzio testified as a fact witness and primarily related information regarding her report of suspected abuse to Cuyahoga County Job and Family Services and her concerns regarding the supervision of the children while they were with Ms. Keen, specifically mentioning the type of videos the children watch, which are not age-appropriate.

         {¶17} Both parties testified at trial as to their living arrangements and concerns about each other and the children. Their concerns about each other largely stemmed from miscommunication and/or lack of communication and the harm that may occur when the children are with the other parent. There were also conflicting communications regarding the children's baptism.

         {¶18} Ms. Keen testified that she has worked for the Cuyahoga County Department of Job and Family Services for over 17 years, where she determines eligibility for services such as Medicaid and food stamps. She works Monday thru Friday, 7:30 a.m. to 3:30 p.m. As already noted, Ms. Keen lives with her ex-husband in Parma, Ohio, and their three children, who are ages 7, 18, and 21. Including E.W. and D.W., there are seven people residing in her home.

         {¶19} E.W. attended preschool three days a week, Monday, Wednesday, and Friday from 8:15 a.m. to 10:45 a.m. Ms. Keen's 18-year old daughter transported her to and from school. Ms. Keen took her lunch breaks at home to have lunch with E.W. D.W. was in the first grade and rode the bus to school. D.W. was selected in a random lottery to be in a STEM program (science, technology, engineering, and mathematics) for the first grade.

         {¶20} Ms. Keen's ex-husband, Mr. Bassett, testified that E.W. and D.W. had never been left alone, his relationship with them was "wonderful," and that all of the children had a good relationship with each other.

         {¶21} Mr. Wilson testified that he is an independent contractor, who typically works as a project superintendent for a highway and bridge building company. He works Monday through Friday, usually 8-10 hour days, starting at 6:00 a.m. Mr. Wilson is one of six children, who all reside in the Trumbull County area and are willing or have taken care of the children in the past when Mr. Wilson is at work. His parents live across the street, a brother is his next-door neighbor, and a sister lives down the street.

         {¶22} Mr. Wilson further testified that he lives on a farm with farm animals. His two older daughters, one with special needs, lives with him on an alternating four-day companionship schedule with his ex-wife. Mr. Wilson's ex-wife, Tatiana Wilson, testified that she and Mr. Wilson never had problems communicating or co-parenting with a shared parenting plan since their divorce.

         {¶23} Mr. Wilson's sister-in law, Coryn Marie Wilson, testified that Mr. Wilson is an active, hard-working father. They both have watched each other's children in the past.

         {¶24} The former vice-president of the Lordstown school board, which is the school district in which Mr. Wilson lives, testified as to the school district's performance in terms of its facilities, finances, and extracurricular activities.

         {¶25} Mr. Wilson's mother, Mary Jane Wilson, also testified. She often takes care of the children before and/or after school. She was concerned about D.W.'s weight and some of E.W.'s inappropriate behavior. She observed both children are active when they stay with Mr. Wilson and watch only age-appropriate television.

         {¶26} The GAL submitted her report and testified, recommending that the shared parenting plan be terminated, and Ms. Keen be designated as the residential parent for school purposes. She opined that the weekends with Mr. Wilson seemed to be working and that Ms. Keen should be given some weekend time. The GAL found that both were good parents and the children were bonded to both parents. The fundamental problem confronting this family was the parties' failure to communicate and inability to make joint decisions, along with the fact that the parties live over 70 miles away from each other. She also expressed concern about Mr. Wilson's practice of videotaping in his home and specifically videotaping the children while asking them leading questions.

         {¶27} The GAL also observed that the children "don't know what is up or down or right or wrong or what happened because they hear one thing from one parent and one thing from another parent, one thing probably from the kids * * * They're hearing different stories from everybody and they're not going to be able to differentiate the truth then from that."

         Pocket Dial Recordings

         {¶28} Two incidents of so-called "pocket dialed" cell phone calls were repeatedly addressed during the trial and are at the center of Ms. Keen's second assignment of error.

         {¶29} Mr. Wilson began surreptitiously recording all his phone calls with Ms. Keen using an application on his phone. Several times, Ms. Keen "pocket dialed" Mr. Wilson without her knowledge that she had done so. A "pocket dial" occurs when the caller inadvertently dials her phone and the call connects without her knowledge. The specific application on Mr. Wilson's phone was not identified, but apparently it had the ability to record the conversation even when Mr. Wilson did not pick up the call. The application would "answer all calls from Ms. Keen's number and immediately begin recording Ms. Keen's conversations with others in the background. Mr. Wilson recorded all of Ms. Keen's calls, but apparently only partially re-recorded and retained the two calls at issue.

         {¶30} Two transcripts of partially recorded cell phone pocket dialed calls were admitted into evidence. The original recordings captured by the application were no longer available because Mr. Wilson no longer has that phone. The court reporter was provided with the partial re-recording of each call and a transcript was prepared, but it appears from a very confusing record that Mr. Wilson's attorney instructed the court reporter to transcribe only a portion of at least one of the re-recordings.

         {¶31} Counsel for Mr. Wilson provided copies of the transcripts to opposing counsel and the GAL shortly before trial, and there is testimony that the GAL was able to listen to each recording in its entirety.

         {¶32} During trial Ms. Keen was afforded the opportunity to listen to the recordings and compare them with the transcription. She identified her voice and agreed that the court reporter accurately transcribed what was on the recordings but repeatedly denied the conversation, saying she "can't remember everything."

         {¶33} One call consisted of a male, later identified as Mr. Bassett, talking about leaving E.W. and D.W. home alone while Mr. Bassett took his son to school. Ms. Keen and one of their daughters were questioning him. The other call occurred when Ms. Keen returned home from picking up the children, and in the recording she informed Mr. Bassett that she had forgotten E.W.'s car seat.

         How the Calls Were Used At Trial

         {¶34} Mr. Wilson's counsel questioned Ms. Keen about these incidents and then attempted to impeach her testimony with the statements made on the recordings.

         {¶35} The court interjected and addressed counsel: "Well, I think the time to have this cross examination is when you admitted that exhibit into evidence. I mean, you've gotten the witness to testify that she has no recollection of it, so you have her right where you want her. Now if you're going to submit that into evidence, then we're going to determine her credibility. We don't need to beat it up."

         {¶36} The following day cross-examination continued, and Mr. Wilson's counsel attempted to lay a foundation for the transcribed tapes. Ms. Keen's counsel objected, claiming the recording itself was the best evidence. The court reminded counsel that Ms. Keen heard the recordings and indicated during her testimony that she read the transcript and the transcription was accurate.

         {¶37} Ms. Keen testified on redirect that the phone calls were incomplete conversations that "did not tell her a lot." She explained she was not aware she had called Mr. Wilson nor was she aware how the conversations were recorded. She was unaware she was being recorded, and Mr. Wilson never spoke during the pocket dialed calls to alert her she had inadvertently called him. She only recalled Mr. Wilson informing her via OurFamilyWizard she had pocket dialed him in September. She had no idea ...

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