Tassone v. Tassone , 2021 Ohio 4063 ( 2021 )

[Cite as Tassone v. Tassone, 2021-Ohio-4063.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Zephynia S. Tassone, :
Plaintiff-Appellee, :
No. 20AP-426
v. : (C.P.C. No. 17DR-4399)
Matthew Tassone, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 16, 2021
On brief: Matthew Tassone, pro se. Argued: Matthew
Tassone.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
KLATT, J.
{¶ 1} Defendant-appellant, Matthew Tassone, appeals an order of the Franklin
County Court of Common Pleas, Division of Domestic Relations. For the following reasons,
we dismiss this appeal.
{¶ 2} Matthew Tassone and plaintiff-appellee, Zephynia S. Tassone, married on
July 6, 2011. During their marriage, the parties had one child.
{¶ 3} On November 30, 2017, Zephynia filed a complaint for divorce and sought
custody of the parties' minor child. Matthew answered the complaint and filed a
counterclaim for divorce. He, too, sought custody of the parties' minor child.
{¶ 4} Proceeding pro se, Matthew has submitted a plethora of pre-trial motions to
the trial court. Matthew has unsuccessfully appealed several of the trial court's orders to
No. 20AP-426 2
this court. Tassone v. Tassone, 10th Dist. No. 19AP-382, 2020-Ohio-3151, ¶ 2 (listing the
appeals this court has dismissed because Matthew did not appeal from a final, appealable
order).
{¶ 5} This appeal arises from the trial court's August 14, 2020 order. In that order,
the trial court required both parties to submit to diagnostic psychological evaluations.
Previously, the trial court had ordered the parties to undergo custodial evaluations, which
the court specified would include psychological evaluations if deemed necessary by the
custodial evaluator. When the court-appointed custodial evaluator requested diagnostic
psychological evaluations of the parties prior to completing his custodial evaluations, the
trial court issued the August 14, 2020 order.
{¶ 6} Additionally, in the August 14, 2020 order, the trial court determined that
"the allegations, information and record in this matter substantiates the relevancy of each
party's medical, psychological, psychiatric and mental health care records for purposes of
the Court's requirement to consider the mental and physical conditions of each parent to
determine custody of the minor child." (Emphasis sic.) (Aug. 14, 2020 Order at ¶ 5.) The
trial court, therefore, required each parent to sign any and all releases deemed necessary
by the psychological evaluator and custodial evaluator to allow them to obtain medical or
mental health records for the purposes of completing the evaluations.
{¶ 7} Finally, the trial court stated, "[t]he Court has previously reviewed Matthew
Tassone's Veterans Administrations health care records in camera and finds them to be
relevant to the mental and physical conditions of Matthew Tassone." (Emphasis sic.)
(Aug. 14, 2020 Order at ¶ 6, 12.) The trial court then authorized the psychological evaluator
and custodial evaluator to obtain copies of Matthew's health care records directly from the
Veterans Administration.
{¶ 8} On appeal, Matthew assigns the following errors:
1. the trial courts September 28th, 2018 order ordering a
psychological evaluation (AKA a "custodial evaluation") was
obtained via extrinsic fraud & collateral fraud; therefore, it is
void & not subject to enforcement.
2. The trial courts August 14th, 2020 order ordering a
"psychological evaluation" was founded upon the
September 28th, 2018 order ordering a psychological
evaluation of Defendant, and is therefore void.
No. 20AP-426 3
3. The August 14th, 2020 order ordering a psychological
evaluation of Appellant & the September 18th, 2018 order
ordering a "custodial evaluation" were obtained in violation of
the Due Process Clauses of the Constitution of the United
States and the Ohio Constitution.
4. The August 14th, 2020 order ordering a psychological
evaluation of Appellant illegally orders the disclosure of
privileged information.
5. The trial court failed to follow it's own order & the
August 14th, 2020 order ordering a psychological examination
of Appellant is illegal, arbitrary and capricious, and an abuse of
discretion
6. The judicial officers lied and alleged that a recording of the
June 15th, 2018 hearing existed, when it does not.
7. Appeal is not an effective remedy for Appellant in the state
of Ohio.
8. R.C. 3109.04(C) is of no further force or effect pursuant to
the Ohio Constitution because R.C. 3109.04(C) is in conflict
with the procedural requirements of Ohio Civ.R. 35(A)1
{¶ 9} Matthew's first through third and sixth through eighth assignments of error
relate to the part of the August 14, 2020 order that required him to undergo a diagnostic
psychological evaluation. We will address those assignments of error together.
{¶ 10} Article IV, Section 3(B)(2) of the Ohio Constitution establishes that courts of
appeals only "have such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the court of
appeals within the district." R.C. 2505.03(A) restricts the jurisdiction of courts of appeals
to the review of final orders, judgments, or decrees. Flynn v. Fairview Village Retirement
Community, Ltd., 132 Ohio St.3d 199, 2012-Ohio-2582, ¶ 5. Thus, if an appealed judgment
is not a final order, judgment, or decree, a court of appeals lacks jurisdiction to review it.
Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, ¶ 21. Even if the parties do not
raise the question of jurisdiction, when a court of appeals suspects the appealed judgment
1 We quote Matthew's assignments of error verbatim, without correcting any grammatical errors.
No. 20AP-426 4
is not a final, appealable order, it must sua sponte consider whether it possesses the
jurisdiction necessary to hear the appeal. State ex rel. White v. Cuyahoga Metro. Hous.
Auth., 79 Ohio St.3d 543, 544 (1997); Leonard v. Huntington Bancshares, Inc., 10th Dist.
No. 13AP-843, 2014-Ohio-2421, ¶ 8.
{¶ 11} R.C. 2505.02(B) sets forth different types of final, appealable orders. To
qualify as a final, appealable order, an order must satisfy the criteria of one of these types
of final, appealable orders. Flynn at ¶ 5. An order requiring a party to submit to a diagnostic
psychological evaluation in a divorce proceeding could conceivably constitute a final,
appealable order under R.C. 2505.02(B)(2) or 2505.02(B)(4).
{¶ 12} Pursuant to R.C. 2505.02(B)(2), an order is final if it "affects a substantial
right made in a special proceeding or upon a summary application in an action after
judgment." A "special proceeding" is "an action or proceeding that is specially created by
statute and that prior to 1853 was not denoted as an action at law or a suit in equity." R.C.
2505.02(A)(2). Because divorce is a statutory matter that did not exist at common law,
divorce proceedings qualify as special proceedings. Thomasson v. Thomasson, 153 Ohio
St.3d 398, 2018-Ohio-2417, ¶ 12. Thus, we must consider whether ordering Matthew to
undergo a diagnostic psychological evaluation affected a substantial right.
{¶ 13} A "substantial right" is "a right that the United States Constitution, the Ohio
Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce
or protect." R.C. 2505.02(A)(1). Arguably, a court order requiring a medical examination
invades a person's privacy. Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, ¶ 19.
However, "[t]he right to be free from an unwanted medical examination is found in the
common law," not in constitutional law, and "common-law privileges [are] subject to
statutory change." Id. Moreover, Ohio common law has historically permitted medical
examinations of parties in particular cases. Id. at ¶ 20.
{¶ 14} Here, the trial court ordered Matthew to undergo a diagnostic psychological
evaluation under R.C. 3109.04(C), which permits a court tasked with allocating parental
rights and responsibilities to "order the parents * * * to submit to medical, psychological,
and psychiatric examinations." Thus, to the extent that a common-law right against
psychological examination existed, R.C. 3109.04(C) abrogated it where allocation of
custody is at issue. See Myers at ¶ 20 ("At least between plaintiff and defendant there does
No. 20AP-426 5
not appear to be a common-law right against medical examination, and even if there was a
common-law right it has been abrogated by [Civ.R. 35].").
{¶ 15} A parent in a divorce action, therefore, does not have a substantial right to
prevent a court from ordering a psychological examination. Accordingly, a court order
requiring a parent to submit to a psychological examination does not affect a substantial
right. See In re B.M., 9th Dist. No. 12CA0009, 2012-Ohio-4093, ¶ 24; Prakash v. Prakash,
181 Ohio App.3d 584, 2009-Ohio-1324, ¶ 14-17 (10th Dist.). Because Matthew cannot
satisfy all the criteria of R.C. 2505.02(B)(2), the part of the August 14, 2020 order
mandating he undergo a diagnostic psychological evaluation is not final and appealable
under that provision.
{¶ 16} We next turn to R.C. 2505.02(B)(4), which applies to provisional remedies.
A "provisional remedy" is "a proceeding ancillary to an action." R.C. 2505.02(A)(3). In
Myers, the Supreme Court of Ohio determined that a request for a medical examination
under Civ.R. 35(A) is not a provisional remedy. Id. at ¶ 24-25. As requests under both
Civ.R. 35(A) and R.C. 3109.04(C) seek similar (if not the same) remedies, we follow Myers
and conclude that a request under R.C. 3109.04(C) is not a provisional remedy.
Consequently, the part of the August 14, 2020 order requiring Matthew to submit to a
diagnostic psychological evaluation is not a final and appealable order under R.C.
2505.02(B)(4), either.
{¶ 17} In sum, we conclude that we lack jurisdiction to review the part of the
August 14, 2020 order requiring Matthew to undergo a diagnostic psychological
examination. We thus dismiss the first through third and sixth through eighth assignments
of error.
{¶ 18} By Matthew's fourth and fifth assignments of error, he argues that the trial
court erred in ordering the disclosure of privileged medical records. We will not address
that issue because it is moot.
{¶ 19} As a general matter, courts do not decide moot issues. Rithy Properties, Inc.
v. Cheeseman, 10th Dist. No. 15AP-641, 2016-Ohio-1602, ¶ 14. Moot issues involve no
actual genuine live controversy, the decision of which can definitely affect existing legal
relations. In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶ 11 (10th Dist.). In other
words, moot issues have no practical significance, and, instead, present hypothetical or
No. 20AP-426 6
academic questions. State ex rel. Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529,
¶ 55.
{¶ 20} Here, the trial court ordered Matthew to submit to a diagnostic psychological
evaluation so it could obtain a full and complete custodial evaluation of Matthew. The trial
court intended to use the custodial evaluations of both parents to determine what custody
arrangements served the best interest of the parties' child. On June 1, 2021, the trial court
issued a final judgment in the parties' divorce and allocated the parental rights and
responsibilities for the parties' child.2 The trial court did so without the aid of a custodial
evaluation of Matthew. Quite simply, Matthew never scheduled or appeared for a
diagnostic psychological evaluation or custodial evaluation. With a final order now entered
on the record, Matthew will not have to undergo either a diagnostic psychological
evaluation or custodial evaluation pursuant to the August 14, 2020 order. Neither
evaluator, therefore, will attempt to access his medical records because neither evaluator
will have reason to complete an evaluation pursuant to the August 14, 2020 order. Because
Matthew's medical records are no longer in danger of disclosure pursuant to the August 14,
2020 order, his challenge to the trial court's decision is moot. Accordingly, we dismiss
Matthew's fourth and fifth assignments of error.
{¶ 21} For the foregoing reasons, we dismiss Matthew Tassone's first through eighth
assignments of error, and we dismiss this appeal.
Appeal dismissed.
DORRIAN, P.J., concurs in judgment only.
BROWN, J., concurs.
DORRIAN, P.J., concurring in judgment only.
{¶ 22} I recognize the binding authority of Myers v. Toledo, 110 Ohio St.3d 218,
2006-Ohio-4353. Therefore, I respectfully concur in judgment only.
____________
2 While the June 1, 2021 judgment is not contained in our record on appeal, a court may consider evidence
from outside the record in determining whether an issue is moot. Loc.R. 9.1 of the Tenth District Court of
Appeals; State ex rel. Ames v. Summit Cty. Court of Common Pleas, 159 Ohio St.3d 47, 2020-Ohio-354,
¶ 5; Darr v. Livingston, 10th Dist. No. 16AP-315, 2017-Ohio-841, ¶ 16.