Kraemer v. Kraemer

[Cite as Kraemer v. Kraemer, 2018-Ohio-3847.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
BRADLEY M. KRAEMER, :
Plaintiff-Appellee, : CASE NO. CA2017-08-120
: OPINION
- vs - 9/24/2018
:
KERRI L. KRAEMER, :
Defendant-Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR2007-08-1019
Traci Combs-Valerio, 1248 Nilles Road, Suite 7, Fairfield, Ohio 45014, for plaintiff-appellee
Zachary D. Smith, Centennial Plaza III, 895 Central Avenue, Suite 305, Cincinnati, Ohio
45202, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Kerri Kraemer ("Mother), appeals from the decision of the
Butler County Court of Common Pleas, Domestic Relations Division, which denied her
motion to declare Butler County an inconvenient forum in a custody dispute between her and
plaintiff-appellee, Bradley Kraemer ("Father"). For the reasons described below, this court
affirms the domestic relations court's decision.
Butler CA2017-08-120
{¶ 2} Mother and Father, both originally from northern Kentucky, wed in 1998. The
couple then moved to Butler County, Ohio. Children were born of the marriage in 2002 and
2005.
{¶ 3} In 2007, Father filed a complaint for divorce in Butler County. Mother left the
marital home and began residing at her parents' home in Villa Hills, Kenton County,
Kentucky. In 2008, the Butler County domestic relations court issued a decree of divorce,
which incorporated the terms of a separation agreement naming Mother the residential
parent and legal custodian and granting Father parenting time on Wednesday, Thursday, and
every other Saturday.1
{¶ 4} In 2009, Mother filed a contempt motion and issued discovery documents
related to Father's alleged failure to pay child support and make agreed loan payments on a
vehicle. The court held a hearing, the parties reached an agreement on all issues, and
Mother withdrew the motion.
{¶ 5} For the next eight years, the children resided with Mother at Mother's parents'
home in northern Kentucky during which time the parties filed no post-decree motions. The
children attended grade school in Kentucky. Father and the paternal grandparents continued
to enjoy weekly parenting time with the children pursuant to the separation agreement.
Parenting time exchanges took place at a family member's home in Glendale, Ohio, or at
locations in Butler County.
{¶ 6} In 2017, when the children were ages 14 and 12, Father moved the Butler
County court to designate him sole custodial parent. Father alleged a change in the
children's situation, that Mother was attempting to alienate the children from Father, and that
the eldest child had indicated a desire to no longer live with Mother.
1. By agreement of the parties, the children spent Thursday with their paternal grandparents, residents of
northern Kentucky.
-2-
Butler CA2017-08-120
{¶ 7} Mother responded by moving the court to declare Butler County an
inconvenient forum and stay custody proceedings until the case could be transferred to
Kentucky. Mother argued that she and the children had lived in Kentucky for many years and
that most of the evidence and witnesses related to custody would be found in Kentucky.
{¶ 8} The court held a hearing limited to the issues raised in Mother's motion. Mother
and Father testified. Following the hearing, the court issued a decision finding that Mother
had not demonstrated that Butler County was an inconvenient forum. Mother appeals,
raising two assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO
DENY JURISDICTION.
{¶ 11} In this assignment of error, Mother argues that the evidence presented at the
hearing established that Butler County was an inconvenient forum. Mother further contends
that the court based its decision on evidence concerning the parties' financial circumstances
that was not admitted into evidence and that the court improperly considered Mother's filing
of a contempt motion.
{¶ 12} Initially, Father argues that the domestic relations court's decision is not a final
appealable order. This court has previously exercised jurisdiction over an appeal arising
from an inconvenient forum motion, although the decision did not address the issue of
whether the decision was a final appealable order. Urteaga v. Urteaga, 12th Dist. Warren
No. CA2014-08-109, 2015-Ohio-2465. Two courts of appeal that have addressed the issue
have concluded that a decision arising from an inconvenient forum motion is a final
appealable order. Critzer v. Critzer, 8th Dist. Cuyahoga No. 90679, 2008-Ohio-5126, ¶ 9;
Buzard v. Triplett, 10th Dist. Franklin No. 05AP-579, 2006-Ohio-1478, ¶ 8-11; contra Buxton
v. Mancuso, 5th Dist. Knox No. 09 CA 22, 2009-Ohio-6839, ¶ 13-14. This court has
-3-
Butler CA2017-08-120
jurisdiction to review "final orders," which include an "order that affects a substantial right
made in a special proceeding* * *." R.C. 2505.02(B)(2). A divorce and related custody
proceedings qualify as a "special proceeding" pursuant to R.C. 2505.02(B)(2). State ex rel.
Papp v. James, 69 Ohio St.3d 373, 379 (1994); In re Murray, 52 Ohio St.3d 155, 161 (1990).
A "substantial right" means "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). R.C. 3127.21 grants a party a right to contest the convenience of a
forum in a child custody matter. Moreover, "[c]ustody proceedings affect substantial rights."
James at 378. Thus, this court finds that an order denying an inconvenient forum motion in a
custody matter is a final appealable order. 2
{¶ 13} This court reviews a domestic relations court's decision on a motion to declare
an inconvenient forum for an abuse of discretion. Urteaga at ¶ 15. An abuse of discretion
implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Ohio adopted the Uniform Child Custody
Jurisdiction and Enforcement Act in R.C. 3127.01 through 3127.53. The purpose of the act
is to avoid jurisdictional issues and competition between different states with respect to child
custody issues. Urteaga at ¶ 13. The intent is to ensure that a state does not exercise
jurisdiction over a child custody matter if a court in another state was already exercising
jurisdiction over the child in a custody proceeding. Id.{¶ 14} R.C. 3127.21 provides a domestic relations court with discretion to transfer
jurisdiction of a custody matter to a different state upon a finding that, (1) the Ohio court "is
an inconvenient forum under the circumstances[,]" and (2) that "a court of another state is a
2. This court has held otherwise. In re Adoption of Favaron, 12th Dist. Clermont No. CA90-01-002, 1990 Ohio
App. LEXIS 2146 (May 29, 1990). However, Favaron, predated the statute at issue in this case, R.C. 3127.21,
and In re Murray.
-4-
Butler CA2017-08-120
more convenient forum." R.C. 3127.21(A). The statute provides that the court shall first
"consider whether it is appropriate for a court of another state to exercise jurisdiction" and
then proceed to determine whether the Ohio court is an inconvenient forum. R.C.
3127.21(B). In analyzing these issues, the court is required to consider "all relevant factors"
including the following delineated factors:
(1) Whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in
the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should
assume jurisdiction;
(6) The nature and location of the evidence required to resolve
the pending litigation, including the testimony of the child;
(7) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence;
(8) The familiarity of the court of each state with the facts and
issues in the pending litigation.
R.C. 3127.21(B).
{¶ 15} Upon review, this court does not find that the domestic relations court abused
its discretion in concluding that Mother failed to establish that Ohio was an inconvenient
forum. The court considered the relevant statutory factors. The court found that the children
lived in Ohio until 2007. The children continued to have weekly contact with Butler County
through Father's parenting time. Mother returned to Ohio on an almost weekly basis to
facilitate visitation. The court noted a 30- to 40-mile distance between Butler County and
Kenton County. The court found that the availability of witnesses was not materially affected
-5-
Butler CA2017-08-120
by the Butler County court maintaining jurisdiction. The court found that the income, living
circumstances, and support of the parties was similar. Finally, the court observed that
Mother had one post-decree filing with the Butler County court, but the parties had no contact
with any other court regarding the divorce and custody matter.
{¶ 16} Mother argues that the weight of the evidence should have indicated that Ohio
was an inconvenient forum because she and the children resided continuously in Kentucky
for ten years and because most of the witnesses and evidence related to determination of
custody of the children would be in Kentucky. These facts would tend to indicate that it
would be more convenient for Mother to litigate in Kentucky. However, in addition to
demonstrating that Kentucky would be a convenient forum, the law required Mother to
demonstrate that Ohio was an inconvenient forum. In this regard, Mother and the children's
long-term residence in northern Kentucky, some 30 or 40 miles away from Butler County, did
not establish that Ohio was an inconvenient forum. Moreover, the length of time the children
have resided out-of-state was only one fact of many considered by the court in rendering its
decision.
{¶ 17} Urteaga is instructive. A mother and father lived with their children in Ohio.
2015-Ohio-2465 at ¶ 2. After the mother filed for divorce in Ohio, the father moved to
Pennsylvania. The following year, pursuant to a shared parenting plan, the children left Ohio
to reside with the father in Pennsylvania. Id.{¶ 18} In the two years following the divorce, the mother filed multiple motions
attempting to modify the parties' shared parenting plan, which the parties litigated in Ohio. Id.
at ¶ 3, 4. The mother's attempts to alter the custody arrangement were unsuccessful until
her fourth motion to modify. Id. at ¶ 5. The court found a change of circumstance and
scheduled a best interest hearing. Id. The father then moved the court to find Ohio an
inconvenient forum and transfer jurisdiction to Pennsylvania. Id. at ¶ 6.
-6-
Butler CA2017-08-120
{¶ 19} The domestic relations court denied the father's inconvenient forum motion on
the basis that it was familiar with the facts of the case and was concerned with the timing of
the motion. Id. at ¶ 7-8. The domestic relations' court acknowledged that most of the
evidence would be found in Pennsylvania and there was a significant driving distance of 10 to
11 hours between the Pennsylvania court and the Ohio court. Id. at ¶ 8. Nonetheless, the
court stated that evidence could be presented to the court through depositions. Id. at ¶ 7.
The court noted that the children had resided in Pennsylvania for two years, which weighed
in the father's favor. However, this was only one factor of eight to be considered and the
father had not demonstrated that Ohio was an inconvenient forum. Id. at ¶ 9. In affirming
the decision, this court rejected the father's argument on appeal that the children's residence
in Pennsylvania and the presence of evidence there should have been dispositive of the
issue of convenience. Id. at ¶ 18-19. The statute did not assign any weight to the statutory
factors and thus the lower court had the discretion to determine the weight to afford each
factor. Id. at ¶ 19.
{¶ 20} Mother distinguishes this case from Urteaga because the children resided
outside Ohio for much longer than two years. However, as this court found in Urteaga, the
length of the children's out-of-state residence is simply one factor under consideration and is
not necessarily dispositive of the issue of convenience. Other facts in this case suggest that
Ohio is a more convenient forum than Pennsylvania was in Urteaga, including the
approximate 30 to 40 miles separating the two jurisdictions as opposed to 10 to 11 hours of
driving.
{¶ 21} Next, Mother contends that the court erred in its consideration of the financial
circumstances of the parties. Mother argues that the court based its decision on Father's W-
2 information, which was not admitted into evidence. However, while Father's W-2's were not
admitted at the hearing, Father testified concerning their content. Mother also argues that
-7-
Butler CA2017-08-120
the court ignored a significant disparity between Father's and Mother's incomes. The court
found that the parties incomes were similar considering their living circumstances. The court
may have based this finding on Mother's testimony that she had not paid rent for ten years
while living with her parents and her household expenses were to "contribute to groceries"
and "day-to-day" expenses. We find no abuse of discretion with respect to this aspect of the
court's decision.
{¶ 22} Finally, Mother contends that the court should not have considered her filing of
a post-decree contempt motion in Butler County. Mother argues that she was required by
law to seek enforcement of the child support order in Ohio and thus could not have initiated
proceedings in Kentucky.3 Assuming Mother's contention is accurate, the court's
consideration of this factor does not evidence an abuse of discretion under the
circumstances of this case. Again, this was one fact of many considered by the court in
arriving at its decision. More importantly, this fact did not tend to prove or disprove that Ohio
was an inconvenient forum.
{¶ 23} The court's decision reveals that it properly considered all relevant evidence
submitted at the hearing, including the relevant statutory factors. Ultimately, the evidence
indicated that Kentucky would be a more convenient forum for Mother to litigate the case.
However, the evidence failed to establish that Ohio was an inconvenient forum. The lower
court acted within its discretion in denying Mother's motion and this court overrules Mother's
first assignment of error.
{¶ 24} Assignment of Error No. 2:
{¶ 25} THE TRIAL COURT ERRONEOUSLY SUSTAINED APPELLEE'S
3. As discussed, Mother's contempt motion was not limited to enforcement of child support payments, but also
raised an issue with respect to Father's agreement to pay a marital debt related to a vehicle. Mother does not
explain if her argument, that she was required to file in Ohio, extends beyond child support enforcement
proceedings.
-8-
Butler CA2017-08-120
OBJECTION REGARDING ATTORNEY'S FEES.
{¶ 26} Mother argues that the court erred in declining to allow her to question Father
concerning Father's billing arrangement with his counsel on the basis that the information
sought was protected by the attorney-client privilege. Mother contends that the information
sought was relevant and not privileged.
{¶ 27} Father is a criminal defense attorney. During Father's cross-examination,
Mother's counsel questioned Father concerning his financial arrangement with his attorney in
the custody case. Father's counsel objected, asserting that such information was protected
by the attorney-client privilege. Mother's counsel explained that she anticipated that Father
would testify that he was receiving discounted legal services or had not paid a retainer or
signed a fee agreement (presumably as a favor from a fellow attorney). The court sustained
the objection and did not permit further questioning on the subject.
{¶ 28} The admission or exclusion of relevant evidence rests within the lower court's
sound discretion. Fox v. Fox, 12th Dist. Clermont No. CA2013-08-066, 2014-Ohio-1887, ¶
13. The attorney-client privilege is the oldest of the privileges for confidential
communications known to common law. Upjohn Co. v. United States, 449 U.S. 383, 389,
101 S. Ct. 677 (1981). "Its purpose is to encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the observance of
law and administration of justice. The privilege recognizes that sound legal advice or
advocacy serves public ends and that such advice or advocacy depends upon the lawyer's
being fully informed by the client." Id. In Ohio, the attorney-client privilege is governed by
statute, R.C. 2317.02(A), which provides a testimonial privilege, and in situations not
encompassed by that statute, by common law, which broadly protects against any
dissemination of information obtained in the confidential attorney-client relationship. State ex
rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 18.
-9-
Butler CA2017-08-120
{¶ 29} Mother cites several Ohio Supreme Court mandamus actions involving public
record requests for the proposition that "non-narrative" portions of attorney-billing records
such as "dates, hours and rates" are not ordinarily privileged. State ex rel. Pietrangelo v.
Avon Lake, 146 Ohio St.3d 292, 2016-Ohio-2974; State ex rel. Anderson v. Vermilion, 134
Ohio St.3d 120, 2012-Ohio-5320; State ex rel. Dawson v. Bloom-Carrol Local School Dist.,
131 Ohio St.3d 10, 2011-Ohio-6009. The information contained in an attorney's billing
records are different than what is presented in a typical fee agreement. Thus, it is not
apparent that the rationale of this line of cases is applicable to the issue at hand.
{¶ 30} This court finds that the lower court acted within its discretion in declining to
allow Mother's counsel's inquiry into the financial arrangement between Father and his
counsel. The information sought was relevant to Father's financial circumstances.
Nonetheless, the question posed necessarily required Father to reveal potentially privileged
communications between himself and counsel. Moreover, Mother's claim that she expected
Father to testify that he was receiving free or discounted legal services appears to be
speculative. Even if Mother's belief was accurate, such evidence would not have established
that Ohio was an inconvenient forum but merely established that Father had a greater
financial ability to litigate the matter in Kentucky. Accordingly, this court overrules Mother's
second assignment of error.
{¶ 31} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
- 10 -