Court of Appeals of Ohio, Eleventh District, Trumbull
STACY D. KEEN, Plaintiff-Appellant,
DANIEL E. WILSON, Defendant-Appellee.
Appeal from the Trumbull County Court of Common Pleas,
Domestic Relations Division, Case No. 2012 DR 00371.
D. Franks, (For Plaintiff-Appellant).
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
JANE TRAPP, J.
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.
and Procedural History
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.
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.
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
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
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.
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.
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.
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.
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.
to Terminate the Shared Parenting Plan
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.
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
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,
Testimony and Evidence During Trial
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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
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
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.
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."
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
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
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.
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.
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."
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.
the Calls Were Used At Trial
Mr. Wilson's counsel questioned Ms. Keen about these
incidents and then attempted to impeach her testimony with
the statements made on the recordings.
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
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.
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 ...