Jefferson Child Support Enforcement Agency v. Roberts ( 2016 )

[Cite as Jefferson Child Support Enforcement Agency v. Roberts, 2016-Ohio-8216.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JEFFERSON COUNTY CHILD )
SUPPORT ENFORCEMENT AGENCY, )
ON BEHALF OF: THE STATE OF )
FLORIDA, ET REL., TYRA ELAINE )
ROBERTS, MOTHER AND NEXT )
FRIEND OF MARK DAKOTA ROBERTS ) CASE NO. 16 JE 0005
C/O OFFICE OF CHILD SUPPORT )
ENFORCEMENT LAKE COUNTY ) OPINION
INTERSTATE UNIT, )
)
PETITIONER-APPELLEE )
)
V. )
)
STEVEN CHARLES ROBERTS, )
)
RESPONDENT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division of Jefferson
County, Ohio
Case No. 2010-CV-17
JUDGMENT: Affirmed
APPEARANCES:
For Petitioner-Appellee No brief filed
For Respondent-Appellant Attorney Mary F. Corabi
424 Market Street
Steubenville, Ohio 43952
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: December 16, 2016
[Cite as Jefferson Child Support Enforcement Agency v. Roberts, 2016-Ohio-8216.]
DONOFRIO, P.J.
{¶1} Appellant, Steven Roberts, appeals from a Jefferson County Common
Pleas Court judgment finding that his adult son is disabled and ordering his child
support order to continue.
{¶2} Appellant and appellee, Tyra Roberts, share a son, Mark. Mark was
the subject of a child support order that was put in place on October 7, 2010.
Appellant was the obligor and appellee was the obligee. The support order would
have terminated on Mark’s nineteenth birthday (October 17, 2014).
{¶3} On November 20, 2014, the Jefferson County Child Support
Enforcement Agency (CSEA) filed a motion for determination as to whether the
support order should continue past Mark’s nineteenth birthday. The motion asserted
there was an issue as to whether Mark is mentally and/or physically disabled and
incapable of supporting himself such that the support order would continue into his
adulthood.
{¶4} The trial court held a hearing on the motion. Appellee, acting pro se,
participated via telephone since she and Mark reside in Florida. The court listened to
appellee’s testimony and testimony from a vocational expert that appellant presented.
The court also considered numerous medical records submitted by appellee.
{¶5} The court found that Mark is disabled at this time and unable to support
himself. Therefore, the court ordered that child support would continue. The court
also found, however, that it was not convinced the disability was permanent.
Therefore, it stated it would hold a review hearing on February 1, 2017.
{¶6} Appellant filed a timely notice of appeal on February 18, 2016. He now
raises two assignments of error.
{¶7} Appellant’s first assignment of error states:
THE COURT ERRED AND IT WAS AN ABUSE OF
DISCRETION IN FAILING TO EMANCIPATE THE ADULT SON AND
TO CONTINUE SUPPORT.
{¶8} Appellant argues the trial court erred in ordering him to pay support for
Mark. He points out that no doctor testified on Mark’s behalf. He further asserts
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there was no evidence that Mark has a difficult time caring for himself and there was
no medical evidence as to why Mark does not have a driver’s license. Appellant
claims that while there was evidence that Mark has had various health problems,
there was no evidence that he is disabled and unable to support himself. He
contends the trial court only relied on appellee’s self-serving statements. Appellant
further points to testimony that although Mark uses an electric wheelchair, he is still
employable. Finally, appellant asserts the trial court failed to say why Mark is
disabled or what conditions render him disabled.
{¶9} In reviewing matters concerning child support, appellate courts look at
whether the trial court abused its discretion. Booth v. Booth, 44 Ohio St.3d 142, 144,
541 N.E.2d 1028 (1989). Abuse of discretion connotes more than an error of law or
judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶10} Pursuant to R.C. 3119.86(A)(1), the duty of support to a child imposed
pursuant to a court child support order shall continue beyond the child's eighteenth
birthday only under certain specified situations. One of those specified situations is
when “[t]he child is mentally or physically disabled and is incapable of supporting or
maintaining himself or herself.” R.C. 3119.86(A)(1)(a). Thus, in order to continue a
child support order into adulthood, the court must find (1) that the subject of the
support order is disabled, either physically or mentally and (2) the subject of the
support order is incapable of supporting or maintaining himself or herself.
{¶11} In this case, the trial court found that Mark is disabled based on
appellee’s testimony and the “massive” amount of medical records in support of her
testimony. The court also found that Mark is unable to support himself. Thus, the
court made both of the required findings under the statute.
{¶12} The evidence introduced at the hearing supports the trial court’s
findings.
{¶13} Appellee testified that Mark was diagnosed with epilepsy at age three
when he had his first seizure. (Tr. 13). Then at age four, he was diagnosed with
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eosinophilic esophagitis, which is a digestive tract disease that causes his body to
attack his esophagus, stomach, and colon when he eats. (Tr. 12, 14).
Consequently, he must take steroids to be able to eat. (Tr. 12). The steroids have
caused osteoporosis, which started when Mark was six years old. (Tr. 12, 14). The
osteoporosis has led to more than ten compression fractures in Mark’s back and
caused him to be on daily pain medication. (Tr. 12). The bone compressions have
also led to scoliosis and kyphosis, which requires him to wear a back brace. (Tr. 12).
The medication for osteoporosis, which Mark has been on since age six or seven,
caused necrosis of his jaw resulting in his teeth chipping away. (Tr. 12-13).
Appellee testified that Mark also suffers from Crohn’s Disease and chronic migraines.
(Tr. 12). Additionally, he suffers from multiple seizures every day. (Tr. 12). And
Mark suffers from social anxiety and depression. (Tr. 13).
{¶14} Appellee testified that Mark has a hospital bed at home. (Tr. 15). She
also stated that he has an electric wheelchair that he uses if he has to walk for more
than 20 or 30 minutes. (Tr. 15). Additionally, she stated that Mark takes 30 to 40
pills a day to treat all of his conditions. (Tr. 18). She stated that the medications
cause numerous side effects, one of which is fatigue so Mark frequently naps during
the day. (Tr. 15).
{¶15} Appellee testified that Mark is able to bathe and feed himself. (Tr. 17).
But she helps him organize his medications. (Tr. 17-18). Appellee stated that she
had a teacher come to her house to home school Mark until he was 16 years old.
(Tr. 18-20). At that time, Mark had completed the eighth grade. (Tr. 20). Currently,
appellee was helping Mark to try and obtain his GED. (Tr. 20).
{¶16} Appellee stated that Mark was denied Social Security Disability benefits
in 2009. (Tr. 40). He was then approved for benefits in 2012, but when he turned 18
the benefits stopped. (Tr. 21, 40-41). She stated they were in the process of trying
to get disability benefits for Mark as an adult. (Tr. 21-22). However, the letter that
most recently denied Mark’s benefits stated that the Social Security Administration
determined that Mark’s condition was not severe enough to keep him from working.
(Tr. 43).
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{¶17} Appellee testified that Mark has never worked. (Tr. 24). He does not
have a driver’s license. (Tr. 24). Appellee stated that Mark cannot get his driver’s
license because he has daily seizures. (Tr. 24).
{¶18} According to a February 4, 2015 report by Mark’s pain management
doctor, Mark is physically unable to work and support himself. (Tr. 57-58; Ex. E).
Additionally, according to another of Mark’s treating physicians, in a letter dated
October 3, 2014, Mark “has permanent disability, cannot work, and needs constant
medical supervision.” (Ex. D). The same physician opined, Mark “needs a special
bed, and can barely walk, let alone work and support himself financially.” (Ex. D).
{¶19} In addition to her testimony, appellee presented Mark’s voluminous
medical records documenting the conditions she testified to.
{¶20} In support of his position, appellant presented Linda Dezack, a
vocational expert with the Social Security Administration. Dezack stated that she
provides vocational expert testimony to administrative law judges to help them
determine whether a person is employable. (Tr. 79). She stated that she reviewed
Mark’s medical records. (Tr. 82-86, 100). Dezack stated there was no medical
evidence that Mark could not drive. (Tr. 84). She further opined that since Mark
could walk 20 minutes at a time, he could walk 20 percent of the day thereby making
him employable. (Tr. 88). She further stated that Mark was able to operate a
computer and could therefore get a data entry job. (Tr. 88). She stated he could also
get a job in system surveillance where he would watch monitors. (Tr. 89). She also
stated Mark could become a graphic artist. (Tr. 89).
{¶21} Dezack stated that she based her opinions only on Mark’s medical
records since he turned eighteen. (Tr. 93). She stated she saw nothing in Mark’s
medical records that osteoporosis, Crohn’s disease, migraines, scoliosis, kyphosis,
necrosis of the jaw, social anxiety, or depression would render him unable to work.
(Tr. 93-95). She also stated there was nothing in any of his medical records stating
that Mark was disabled. (Tr. 95). Dezack discounted letters from two different
physicians stating that Mark was disabled and unable to work. (Tr. 97-98; Ex. D, E).
She stated the letters were just opinions. (Tr. 97-98).
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{¶22} On cross examination, Dezack stated that she was not giving an
opinion as to whether Mark could work full-time, part-time, or “casual time.” (Tr. 102).
She was only determining whether he could work at all. (Tr. 102). Dezack admitted
that she was neither a doctor, nor a medical expert. (Tr. 104). Furthermore, Dezack
stated that she did not consider a single medical record from before Mark’s
eighteenth birthday. (Tr. 114-117). She stated that Mark’s earlier medical history did
not exist in her review and did not play a part in her opinion that he was able to work.
(Tr. 106, 108). Therefore, because she did not see a specific diagnosis in Mark’s
records after he turned eighteen for acute pain, compression fractures, or epilepsy,
she did not consider these conditions in reaching her opinion. (Tr. 115-116).
{¶23} The evidence supports the trial court’s findings. The evidence of Mark’s
numerous, serious medical conditions, which have been ongoing since age three,
was uncontroverted. Moreover, two of his treating physicians opined in their letters
that Mark was unable to work. The evidence was also uncontroverted that Mark
requires a hospital bed, an electric wheelchair, a back brace, and 30 to 40 pills daily.
He also suffers daily seizures and therefore cannot drive. And while Dezack opined
that Mark was able to work, she admitted that she did not consider any of Mark’s
medical history before he turned eighteen. Moreover, she did not offer an opinion as
to whether Mark was capable of work full-time, part-time, or “casual time.” Mark
would not be able to support himself working part-time or “casual time.” Thus, he
would require the child support order in either of these situations.
{¶24} Moreover, the trial court found that Mark’s disability may not be
permanent. Therefore, it scheduled a review hearing on February 1, 2017.
Presumably, if Mark’s condition improves, the court will discontinue the child support
order.
{¶25} Based on the above, we cannot conclude that the trial court abused its
discretion in continuing the child support order.
{¶26} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶27} Appellant’s second assignment of error states:
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THE COURT ERRED IN NOT GRANTING RESPONDENT’S
MOTION TO DISMISS.
{¶28} In this assignment of error, appellant contends the trial court should
have granted his motion to dismiss at the conclusion of the hearing. He asserts the
trial court should have dismissed the matter because appellee introduced medical
evidence that was hearsay. He asserts the medical records appellee submitted did
not comply with Evid.R. 803(6) because they were not kept in the regular course of
business.
{¶29} Appellant has waived this issue on appeal. At the conclusion of her
testimony, appellee sought to introduce Mark’s medical records. (Tr. 75). She had
provided the medical records to appellant’s counsel and the CSEA prior to the
hearing. (Tr. 74).
{¶30} Appellant objected to the admission of the medical records and moved
to dismiss the matter at the conclusion of appellee’s case. (Tr. 68-69). Appellant
argued that all of Mark’s medical records were inadmissible hearsay. (Tr. 70-71). He
complained that the medical records did not comply with the business records
exception set out in Evid.R. 803(6). (Tr. 73). At that time the court indicated that it
would be inclined to consider the medical records but it did not yet rule on the issue.
(Tr. 73-75).
{¶31} Appellant then called his witness, Linda Dezack. Dezack based her
testimony and her opinion that Mark could work on Mark’s medical records, which
she reviewed prior to the hearing. (Tr. 80, 82-86, 93).
{¶32} At the conclusion of Dezack’s testimony, appellant again objected to the
admission of Mark’s medical records. (Tr. 123). The court agreed to give appellant a
week to brief the issue before ruling on whether the medical records were admissible.
(Tr. 123-124). The court stated, however, that if the medical records were
inadmissible, then it would not consider Dezack’s testimony because it was based
entirely on her review of the medical records. (Tr. 124-125).
{¶33} Appellant had two attorneys representing him at the hearing. The court
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stated to one of appellant’s attorneys:
THE COURT: So, if - - if - - if the medical records go out, you
lost your expert.
MS. CORABI [one of appellant’s attorneys]: Yeah, I agree with
that.
(Tr. 125).
{¶34} Appellant’s other attorney then had the following colloquy with the court:
THE COURT: * * * I think in a motion they come into that - - you
know, hearsay is one of those discretionary things where I can - - I can
take it or not take it. That’s what I think but if that’s wrong, then show
me I’m wrong and I’ll not take it. I’m more than happy to be shown I’m
wrong if I’m wrong.
MR. MASCIO [appellant’s other attorney]: Well, I guess we’ll let
it in because I don’t want to lose, my expert testimony.
THE COURT: What’s that?
MR. MASCIO: I don’t want to lose the expert’s testimony.
THE COURT: Oh, you definitely lose her because she doesn’t
know anything other than the records that you’re saying are
inadmissible.
MR. MASCIO: Right.
THE COURT: So - - so, I mean, the whole basis of her
testimony is - - is those records.
MR. MASCIO: Right. Then I’m thinking I would have nothing to
refute what she says.
THE COURT: What’s that?
MR. MASCIO: The expert’s the only individual refuting what
mom is saying. So, all right.
THE COURT: I mean, you see how everything she says is
based on the records that you might be getting rid of if you write the
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brief.
MR. MASCIO: Okay. Okay.
THE COURT: Okay?
MR. MASCIO: You’re good with that?
MS. CORABI: Yeah.
THE COURT: Okay. Everybody is satisfied with that? Okay.
(Tr. 129-130).
{¶35} As can be seen from the above quoted exchanges, both of appellant’s
attorneys agreed to the admission of Mark’s medical records. Counsel made a
calculated decision that it was in appellant’s best interest to have the medical records
admitted because without them, appellant’s expert testimony would not be
considered by the court. Therefore, appellant cannot now argue on appeal that the
court erred in admitting the medical records.
{¶36} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶37} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
Robb, J., concurs.