Loewen v. Newsome ( 2012 )

[Cite as Loewen v. Newsome, 2012-Ohio-566.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
EDUARD LOEWEN C.A. No. 25559
25579
Appellee
v.
APPEAL FROM JUDGMENT
PATRICIA NEWSOME ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE No. 2008-11-3540
DECISION AND JOURNAL ENTRY
Dated: February 15, 2012
MOORE, Judge.
{¶1} Appellant, Patricia Newsome (“Mother”), appeals from a judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, that overruled her objections to a
magistrate’s decision and ordered that her minor child be placed in the custody of his father,
Eduard Loewen (“Father”). This Court reverses and remands for a new hearing because Mother
was denied her right to due process.
I.
{¶2} Mother and Father are the parents of one minor child, born September 9, 2004,
who lived with Mother during the first two years of his life. Although Father had lived in this
area and had a relationship with Mother around the time of the child’s birth, he later relocated
out of state and apparently had infrequent contact with Mother and the child.
{¶3} During 2005, Father filed a complaint to establish a parent-child relationship, but
later voluntarily dismissed that case. On November 26, 2006, Father filed this action to establish
2
a parent-child relationship. On March 24, 2009, the trial court granted Father companionship
time with the child. Nonetheless, Father and Mother had difficulty coordinating Father’s visits
with the child, each blaming the other for failing to follow the visitation order. The child had
behavioral problems and had recently been diagnosed with attention deficit hyperactivity
disorder. Mother was concerned that Father did not understand how to address the child’s
special needs.
{¶4} On August 11, 2009, the matter commenced for a hearing before a magistrate on
the allocation of parental rights and responsibilities. Mother asked for a continuance to obtain
counsel, but the magistrate denied her request. Thus, Mother appeared pro se and Father was
represented by counsel. Because it was Father’s motion, the magistrate allowed him to present
his case first. Father’s case concentrated on his allegations that Mother had continually
prevented him from having a relationship with his child. A significant part of his case focused
on custody and visitation disputes that Mother had several years earlier with the grandparents of
one of her older children. The first day of the hearing was consumed by Father’s witnesses: he
called Mother to cross-examine her, and then called two character witnesses, who knew Father
personally but had never seen him with his child.
{¶5} Father’s cross-examination of Mother included extensive questioning about their
disputes over his visitation with their child and the visitation and custody disputes that she had
several years earlier with the family of her older child. After hours of cross-examination, Mother
asked the magistrate whether she would be able to call her four witnesses. The magistrate
responded that Father had a number of witnesses, and that Mother’s witnesses would not testify
until after Father’s witnesses were done.
3
{¶6} The first day of the hearing ended at approximately 4:00, at which time the
magistrate spoke to the parties about reconvening for a second day. The magistrate informed the
parties that on the second day of the hearing “we will start at 9 a.m. and we will go until we are
done. *** Whatever that time is. I’ve been known to leave this courthouse at 11:00 at night.”
The magistrate further cautioned the parties that they should use their time wisely; emphasizing
that Father had already used a full day. She further noted her apparent agreement with Mother’s
complaint that Father had presented a great deal of evidence about what had happened many
years in the past, which was not necessarily relevant.
{¶7} The second day of hearing began with the court’s witness, a family court services
evaluator, who was questioned by the court and both parties about which parent would be more
likely to facilitate visitation with the child. Although the magistrate had stated on the record and
through a journal entry that Father’s evidence that day would be limited to two hours, the record
reveals that the magistrate imposed no such limitation of the presentation of his evidence.
{¶8} Father began his evidence on the second day by calling the step-grandfather of
Mother’s older child, who testified at length about the custody disputes his family had several
years earlier with Mother over that child. Mother repeatedly objected to the relevance of that
testimony, but Father was permitted to continue the examination and Mother was later permitted
to cross-examine the witness about those disputes. Mother was able to elicit on cross-
examination that the step-grandfather, an attorney, had also failed to follow some of the court
orders in that case.
{¶9} Father then testified on his own behalf. His direct testimony went well into the
afternoon of the second day of the hearing and consumed approximately 25 percent of the
hearing that day. Mother expressed her desire to cross-examine Father, but she first called two
4
of her witnesses out of order because they had scheduling conflicts and needed to leave soon. At
the conclusion of Mother’s second witness, the magistrate asked Father’s counsel whether she
was done with Father’s case, which she indicated she was. At 4:12 p.m., despite indicating
earlier that she would stay as long as it took to complete the parties’ cases, the magistrate
abruptly ended the proceedings. The magistrate simply stated, “It’s 12 minutes after 4. As far as
I’m concerned we are done.” The proceedings were concluded at that point, without any prior
notice and without either party having an opportunity to admit their exhibits or proffer any
additional evidence. Mother was not permitted to cross-examine Father, testify on her own
behalf, or call her remaining witness. The magistrate later issued a decision that Father should
be designated the residential parent and have custody of the child at his home in Florida and that
Mother should be granted companionship time with the child once a month.
{¶10} Mother initially filed pro se objections to the magistrate’s decision, but she later
obtained counsel, who was granted leave to supplement the objections after the transcript of
proceedings was prepared. Through the pro se and supplemental objections, Mother maintained
that she had been denied her right to due process at the hearing because Father was permitted to
fully present his case, yet she was denied a fair opportunity to do so. The trial court overruled
Mother’s objections and ordered that the child be placed in the legal custody of Father. Mother
appeals and raises four assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY CONDUCTING AN
UNFAIR TRIAL, WHICH IS A BEDROCK RIGHT GROUNDED IN
CUSTODY LAW AND IN VIOLATION OF [MOTHER’S] PROCEDURAL
AND SUBSTANTIVE DUE PROCESS RIGHTS.
5
{¶11} Mother argues that, by limiting her evidence to less than one-half of the second
day, while Father was given the majority of the two-day hearing and had the opportunity to
present his entire case, the trial court denied her fundamental right to due process. Given the
particular facts before us in this case, we agree that Mother was denied her right to a fair hearing.
{¶12} The right to raise one’s child is an “essential” and “basic” civil right. In re
Murray, 52 Ohio St. 3d 155, 157 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972).
Furthermore, a parent’s right to the custody of her child has been deemed “paramount.” In re
Perales, 52 Ohio St. 2d 89, 97 (1977). Therefore, a parent’s right to the custody of her child
“must be afforded every procedural and substantive protection the law allows.” In re Smith, 77
Ohio App. 3d 1, 16 (6th Dist.1991).
{¶13} In this situation, the trial court was required by R.C. 3109.04 to allocate parental
rights and responsibilities according to the best interest of the child “upon hearing the testimony
of either or both parents[.]” In determining the best interest of this child, the trial court was
required to consider all relevant factors, including those enumerated in R.C. 3109.04(F)(1),
which include the wishes of the parents; the child’s interaction and interrelationship with his
parents, siblings and other significant people; his adjustment to home, school, and community;
the parent more likely to honor and facilitate court-approved parenting time rights; and whether
either parent has established a residence out of state.
{¶14} The trial court seemed to have decided this custody dispute based primarily on
one factor: which parent would be more likely to honor court-ordered parenting time, as that was
almost the entire focus of Father’s case. More significantly, although the relevant facts on that
issue were sharply disputed by the parties, the trial court made its factual findings and credibility
determinations based on the evidence presented by Father, as well as the court’s own witness,
6
without allowing Mother an opportunity to testify or present her own evidence on the issue.
Although Father was permitted to complete his entire direct examination, which consumed much
of the second day of the hearing and focused on Mother impeding his right to visit his child,
Mother was given no opportunity to cross-examine him.
{¶15} It is well settled that a trial court has broad discretion to control the proceedings to
enable it to exercise its jurisdiction in an orderly and efficient manner. See State ex rel. Butler v.
Demis, 66 Ohio St. 2d 123, 128-129 (1981). A magistrate is likewise authorized to regulate the
proceedings and to do everything necessary for the efficient performance of its responsibilities.
Civ.R. 53(C)(2). Nonetheless, the proceedings must be managed in a manner that fulfills the
court’s duty to promote the accuracy and fairness of the hearing. Evid.R. 611 provides that the
court “shall exercise reasonable control” over the mode and manner of interrogation of witnesses
and presentation of evidence so as to avoid a needless consumption of time and/or harassment of
witnesses, but also in a manner that preserves the truth-seeking function of the proceedings.
(Emphasis added.) Evid.R. 611(A). Evid.R. 611(B) further provides that “[c]ross-examination
shall be permitted on all relevant matters and matters affecting credibility.”
{¶16} An ability to testify on one’s behalf and cross-examine the opposing party is
particularly significant in custody hearings, as the dispute rarely leads to litigation unless the
parents are in disagreement about what is in their child’s best interest. Consequently, their
testimony about the matter is typically conflicting and requires the trial court to pass on their
credibility. At a minimum, the trial court must give each parent the opportunity to testify and to
cross-examine the other and, if it must place time limitations on their presentation of evidence, it
must do so in a manner that is fair to both parties.
7
{¶17} In In re T.H., 192 Ohio App. 3d 201, 2011-Ohio-248 (2d Dist.), the court reversed
a custody decision because the trial court had unfairly restricted the father’s ability to present his
case at the hearing. Although the trial court apparently gave the mother the opportunity to
present her entire case, it improperly restricted the father’s case to one half-day of the hearing
plus one hour and fifteen minutes of a second day, including a 15-minute limitation on his direct
testimony. While the appellate court recognized that the trial court has the right to control the
proceedings, it held that the trial court had abused its discretion by unfairly limiting the
presentation of the father’s case. Id. at ¶ 41.
{¶18} Similarly, the Fifth District Court of Appeals held that a mother had been denied
her right to due process at a custody hearing that was factually analogous to the one before us. In
Cohen v. Cohen, 5th Dist. No. 99CA52, 2001 WL 61081 (Jan. 22, 2001), the trial court had
allocated three days for the hearing, yet it allowed the father to use the majority of that time
presenting his case. After the father presented his entire case over two and one-half days, the
trial court limited the mother’s presentation of evidence to one-half of the third day. The trial
court abruptly ended the proceedings before allowing the mother to testify on direct or to call the
father on cross-examination. Although the court later allowed Mother one additional hour to
give her direct testimony, she was not permitted to cross-examine the father.
{¶19} As in the case before us, the mother in Cohen was prevented from cross-
examining the father about a similar dispute that centered on whether she had unreasonably
prevented him from visiting the child. Id. at *2. Given that such a dispute required the trial
court to determine the credibility of each parent’s account of what transpired between them, it
was fundamental to their due process rights that each party have the opportunity to testify on
direct examination and to cross-examine each other. See id. The Cohen court further
8
emphasized, as we do here, that “[o]ur review of the transcript of the proceedings reveals that
appellant and appellee ‘were given different degrees of latitude to develop testimony as to the
validity, or lack thereof, of the allegations’” against Mother. Id.
{¶20} In this case, the magistrate warned Mother that she might not be able to present
her witnesses if she did not use her time more efficiently, but Mother was never told that the
hearing would end shortly after 4:00 on the second day. Moreover, unlike Mother, Father was
permitted to present all of his witnesses, which included character testimony from two witnesses
who had never met the child or Father’s current wife, nor had they ever been to Father’s home in
Florida. Father was also given the latitude to present lengthy testimony about Mother’s custody
and visitation problems several years earlier with her older child, which was of questionable
relevance to the matter before the court. The presentation of Father’s case, excluding any cross-
examination by Mother, consumed the majority of the two-day hearing.
{¶21} Although the magistrate correctly noted that Mother’s cross-examination of
Father’s witnesses was more time consuming than it could have been, Mother had the right to
fully cross-examine Father’s witnesses and the court’s witness. This Court understands that the
magistrate struggled to redirect Mother to ask the witnesses questions rather than argue with or
testify for them, but the record fails to demonstrate that Mother’s questioning consumed an
inordinate amount of time. Given that Mother proceeded through the hearing without the
assistance of counsel, her cross-examination of Father’s witnesses was fairly-well focused on
challenging their credibility and weight to be given their direct testimony.
{¶22} We must conclude that, under the factual situation presented in this case,
Mother’s due process rights were violated by the trial court’s unfair allocation of time between
the parties at the custody hearing, which deprived Mother of an opportunity to provide her own
9
direct testimony or to cross-examine Father. Mother’s first assignment of error is sustained and
the matter is reversed and remanded for a new hearing.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S DECISION GRANTING [FATHER] PERMANENT
LEGAL CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, CONTRARY TO LAW, AND/OR AN[] ABUSE OF
DISCRETION, AND WAS NOT IN THE MINOR CHILD[’]S BEST
INTERESTS[.]
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT RULING ON
MOTIONS BEFORE THE COURT AND/OR ABUSED ITS DISCRETION BY
RULING ON THE MOTIONS WITHOUT REGARD TO TIME TO ASK FOR
RECONSIDERATION OF THE MOTION, OR TO PRESENT OTHER
MOTIONS FOR REVIEW WHEN THOSE MOTIONS WERE NOT
ANSWERED, THUS FURTHER INTERFERING WITH [MOTHER’S]
PROCEDURAL DUE PROCESS RIGHTS.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION BY MOVING FORWARD
WITH THE TRIAL EVEN THOUGH [MOTHER] DID NOT HAVE COUNSEL
AND [MOTHER] PRESENTED A LETTER THAT STATED THAT COUNSEL
WOULD BE AVAILABLE FROM LEGAL AID, WHICH COULD HAVE HAD
A SIGNIFICANT IMPACT ON THIS CASE. INSTEAD [MOTHER] HAD TO
OPERATE PRO SE WHICH WAS AN ABUSE OF DISCRETION,
CONSIDERING HER [PRIOR] COUNSEL WAS PERMITTED TO
WITHDRAW FROM THE MATTER WITHOUT FOLLOWING THE SUMMIT
COUNTY LOCAL RULES AND NO SUBSTITUTION OF COUNSEL WAS
APPOINTED PRIOR TO [COUNSEL WITHDRAWING] SO CLOSE TO
TRIAL. THIS CASE SHOULD HAVE BEEN CONTINUED, ESPECIALLY,
WHEN THE COURT FREELY GRANTED THE RIGHT TO WITHDRAW
WITHOUT SUBSTITUTE COUNSEL BEING IN PLACE, AGAINST ITS
OWN[] SUMMIT COUNTY [LOCAL] RULES, LEAVING [MOTHER]
WITHOUT COUNSEL, SO CLOSE TO TRIAL, EVEN THOUGH THE
SUMMIT COUNTY LOCAL RULES WERE NOT FOLLOWED.
{¶23} Through her second, third, and fourth assignments of error, Mother asserts that
the trial court’s decision to place the minor child in Father’s legal custody was against the
manifest weight of the evidence; that the trial court erred by failing to first rule on her
10
outstanding motions; and that the trial court erred in allowing the hearing to proceed without
Mother being represented by counsel. Because these assignments of error have been rendered
moot by this Court’s disposition of Mother’s first assignment of error, we will not address them
on the merits. See App.R. 12(A)(1)(c).
III.
{¶24} Mother’s first assignment of error is sustained. Her remaining assignments of
error were not addressed because they are moot. The judgment of the Summit County Court of
Common Pleas, Domestic Relations Division, is reversed and the cause remanded for
proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
11
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR
APPEARANCES:
MARY JO HANSON, Attorney at Law, for Appellant.
JEFFREY SAMUELS, Attorney at Law, for Appellant.
LESLIE A. WEISS, Attorney at Law, for Appellee.