Arnold v. Arnold

734 N.E.2d 837, 135 Ohio App. 3d 465

• Court: Ohio Court of Appeals
• Decided: November 1, 1999
• Docket: Case No. CA98-12-021.
• Status: Published

Opinions

Valen, Judge.

Defendant-appellant, Kevin W. Arnold, appeals the decree of divorce issued by the Fayette County Court of Common Pleas naming plaintiff-appellee, Angela D. Arnold, the residential parent and legal custodian of the parties’ only son, Quentin Tyler Arnold.

Kevin and Angela were married in March 1990, and Quentin was born on March 25, 1991. In August 1996, Angela filed a complaint for divorce. In her complaint, Angela requested that she be designated Quentin’s residential parent and legal custodian.

Prior to the final hearing, Angela’s counsel filed a motion in limine requesting that the trial court exclude any and all evidence that Kevin might seek to introduce regarding Angela’s alleged extramarital affairs. Angela contended that such evidence was not relevant to the issue of custody. On March 13, 1997, the magistrate issued an order precluding Kevin from introducing evidence of extramarital relationships unless the evidence was substantially relevant to the best interest of Quentin.

On April 23, 1997, the magistrate held a final divorce hearing at which both parties presented witnesses. A number of friends of the family testified on Angela’s behalf about recent changes in Quentin’s behavior. In general, they, testified that Quentin frequently expressed a desire to stay with Angela, rather than to go with Kevin. Kevin objected to the admission of all statements made by Quentin as inadmissible hearsay. The trial court overruled the objections, stating, “We don’t allow children to testify in court so the court’s made the child unavailable as a witness. Go ahead.”

Angela testified that she was Quentin’s primary caregiver. Additionally, she testified that in an effort to be more available for Quentin, she had recently switched from the second shift at her current job to the first shift, 7:30 a.m. to 4:00 p.m. Angela stated that Quentin’s behavior had recently become hostile and withdrawn. She testified, over Kevin’s hearsay objection, that Quentin was afraid to visit Kevin because Kevin had told Quentin that he might never see his mother again. On cross-examination, Angela admitted to suffering from bouts of depression in the past, but stated that she had sought medical treatment for her condition.

Kevin presented testimony from several witnesses who indicated that Kevin would be the better residential and custodial parent for Quentin. Kevin presented evidence that he spent as much time as possible with Quentin and was currently coaching Quentin’s T-ball team. Throughout the hearing, Kevin attempted to introduce evidence of Angela’s alleged extramarital affairs. Each time the magistrate re-advised Kevin that if the evidence did not directly affect the best interest of Quentin, it would be stricken. Near the conclusion of the hearing, the magistrate struck all such testimony from the record because there was no evidence that Angela’s behavior had adversely affected Quentin.

On August 22, 1997, the magistrate filed a decision recommending that Angela be designated Quentin’s residential parent and that Kevin be awarded extended visitation. On August 29, 1997, Kevin filed a request for findings of fact and conclusions of law. Findings of fact and conclusions of law were issued by the magistrate on January 8, 1998, pursuant to Civ.R. 53(E)(2). Specifically, the magistrate stated:

“Although the mother suffers from bouts of depression, she has sought and has been under medical care for her condition. The father does not have any medical conditions which preclude him from being a proper parent. However, his testimony and demeanor reflected a strong bitterness toward his wife regarding her alleged affairs. This bitterness has and will continue to interfere with parenting decisions. The mother will be the parent who is more likely to facilitate court-ordered visitation and companionship rights * *

On January 21, 1998, Kevin filed objections to the magistrate’s decision. Kevin contended that the magistrate’s decision was not supported by the evidence, that the magistrate erred by admitting hearsay testimony by Angela’s witnesses, and that the magistrate erred by refusing to admit evidence of Angela’s alleged extramarital affairs.

On June 12, 1998, the trial court issued a decision overruling Kevin’s objections and adopting the magistrate’s recommendations. In its entry, the trial court noted:

“Since the father did not file a counterclaim, the magistrate decided that evidence of [the] mother’s alleged adultery was not relevant unless it could be shown that such misbehavior had an affect [sic ] on the mother’s ability to care for the child. * * * The court finds that the magistrate’s ruling was reasonable and appropriate under the circumstances.

“The father also contends that the magistrate admitted hearsay testimony regarding the minor child. At the hearing, both parties presented hearsay testimony concerning their child. It does not appear that this hearsay evidence had any effect on the magistrate’s decision.”

On June 24, 1998, a decree of divorce, which incorporated the June 12, 1998 entry, was filed. Two days later, Kevin filed a motion for a new trial, alleging newly discovered evidence. Kevin asserted that Angela had concealed acts of misconduct during the divorce action, that she had plotted to have him murdered, that she had given birth to another child, and that she changed her place of employment, thereby creating a change of circumstances sufficient to warrant a new trial. On November 5, 1998, the trial court filed an entry overruling Kevin’s motion. Appellant (Kevin) then brought this appeal, raising five assignments of error.

Assignment of Error No. 1:

“The trial court erred in excluding evidence of [appellee’s] adultery and other misconduct.”

In his first assignment of error, Kevin contends that the trial court should have admitted evidence of Angela’s alleged extramarital affairs because such evidence related to Quentin’s best interest. Kevin asserts that Angela’s alleged affairs have and will continue to take time and attention from Quentin. Kevin cites Wilder v. Wilder (Feb. 5, 1985), Franklin App. No. 84AP-604, unreported, 1985 WL 9844, in support of the proposition that “[l]iving in a sexual relationship with an unrelated person of the opposite sex reflects adversely on a person’s character and, thus, is a factor to be considered in the determination of custody.”

A more appropriate standard for considering the alleged moral impropriety of a parent in a custody dispute has been stated as follows:

“Concern for a child’s well-being or best interests does not * * * provide the court carte blanche to judge the rights and lifestyles of parents by nonstatutory codes of moral or social values. Although a court is not obliged to wear blinders as to a parent’s lifestyle and/or morals, including sexual conduct, any state interest in competing lifestyles and accompanying moral values which affect child custody would most equitably be served if limited to a determination of the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child * * Rowe v. Franklin (1995), 105 Ohio App.3d 176, 179, 663 N.E.2d 955, 956-957.

Under the “direct impact” test, as articulated in Rowe, the court may consider moral principles, but only in relation to the direct or probable effect of the parent’s conduct on the child.

Our review of the record reveals that the trial court conducted the proper inquiry. When, prior to the hearing, appellant indicated that he planned to introduce testimony concerning appellee’s alleged extramarital affairs, the court ruled that such testimony would be admissible only if “substantially relevant to the best interest of the minor child.” Each time the matter was raised during the hearing, the court instructed appellant’s counsel that such evidence would be admissible only if shown to have directly affected Quentin’s best interest.

Appellant failed to establish a connection between appellee’s alleged extramarital affairs and Quentin’s well-being. Accordingly, the trial court properly struck all such testimony. 1 Appellant’s first assignment of error is overruled.

Assignment of Error No. 2:

“The magistrate and the trial court erred in admitting hearsay statements of Quentin Tyler Arnold.”

In his second assignment of error, appellant contends that the trial court erred by admitting statements made by Quentin when Quentin was available to testify. Appellant asserts that the trial court was required to conduct a voir dire of Quentin, then six years old, to determine whether he was competent to testify.

We can discern no basis under Ohio law for the magistrate’s ruling on this issue. When appellant attempted to challenge the hearsay statements, the magistrate made a blanket ruling that six-year-old children were not permitted to testify in court. As a result, any statements attributable to Quentin were ruled admissible via hearsay testimony. This ruling is directly contrary to the Rules of Evidence.

Evid.R. 601(A) provides that every person is competent to be a witness except “[t]hose of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Although the competency of individuals who are ten years old or older is presumed, the competency of those under ten years old must be established. State v. Clark (1994), 71 Ohio St.3d 466, 469, 644 N.E.2d 331, 334. “[I]n determining whether a child under ten is competent to testify, the trial court must * * * [consider]: the child’s ability to receive accurate impressions of fact, the child’s ability to recollect * * *, the child’s ability to communicate what is observed, the child’s understanding of truth and falsity, and the child’s appreciation of his or her responsibility to tell the truth.” Id., citing State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus, certiorari denied (1992), 503 U.S. 941, 112 S.Ct. 1488, 117 L.Ed.2d 629. Therefore, where a party seeks to present testimony from a child under ten years of age, that party must be given an opportunity to establish that the child is competent to testify.

In this case, the magistrate admitted hearsay statements, not because the statements fell within an exclusion or exception to the hearsay rule, but because the court found that the child was unavailable to testify. Our review of the record indicates that none of the statements falls within the hearsay exceptions listed in Evid.R. 804. Therefore, whether Quentin was “unavailable” is immaterial in this case. Therefore, we look to Evid.R. 803, which provides exceptions to the hearsay rule where the availability of the declarant is immaterial.

Our review of the entire record reveals that a total of the twenty-four hearsay statements were admitted at the hearing. However, only two of these statements were properly admissible under the Rules of Evidence.

Evid.R. 803 provides the following hearsay exception:

“(3) * * * A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”

We disagree with the dissent here with respect to the second assignment of error, regarding exactly what types of statements fall within the state-of-mind exception in Evid.R. 803(3). Under the reasoning of the dissent, nearly all of the hearsay statements fall within the Evid.R. 803(3) exception because the statements “reflected” the fact that Quentin was “afraid.” The dissent cites State v. Apanovitch (1987), 33 Ohio St.3d 19, 21-22, 514 N.E.2d 394, 397-398, to support its reasoning. However, a close reading of Apanovitch, its progeny, and the clear language of Evid.R. 803(3) yield a contrary result.

First, the exception provided in Evid.R. 803(3) applies to a “statement of the declarant’s then existing state of mind” not to any statement that “reflects” on the declarant’s state of mind. To be included under this exception, the statement must directly refer to the then-existing, subjective qualities of the declarant. Including any statement that may “reflect” on the declarant’s state of mind extends the scope of the exception well beyond that which is clearly provided by the language of the rule.

Second, in Apanovitch, the Ohio Supreme Court followed the reasoning of United States v. Cohen (C.A.5, 1980), 631 F.2d 1223. In Apanovitch, the court explained that statements that the declarant was “scared” or that the declarant was “anxious” are admissible. Apanovitch 33 Ohio St.3d at 21-22, 514 N.E.2d 394, 397-398. However, the court clearly stated that “the state-of-mind exception does not permit witnesses to relate any of the declarant’s statements as to why he held a particular state of mind. Accordingly, the witnesses were allowed to offer testimony that Cohen said, ‘I’m scared,’ but not ‘I’m scared because Galkin threatened me.’ ” Id., 33 Ohio St.3d at 21, 514 N.E.2d at 398 citing Cohen at 1225. 2

In order to apply the Apanovitch rule to the current case, we will examine two specific hearsay statements that were admitted at the hearing. Jean Mitchell, a neighbor of Quentin’s grandmother, testified that Quentin stated to her that he “does not want to go with his dad” and that “his dad is mean to him.” Under the dissent’s reasoning, both of these statements would be admissible because they “reflect” the fact that Quentin was afraid of being with appellant.

This confusion results because, when one reads the statements, it is easy to draw an inference regarding Quentin’s state of mind. One is tempted to infer that these statements actually mean: “I’m upset, because I don’t want to go with my dad,” or “I’m afraid, because my dad is mean to me.” We note that under Apanovitch, the first part of each statement would be admissible, namely, “I’m upset” or “I’m afraid.” However, the second part, explaining why Quentin held the particular state of mind, is clearly inadmissible. Simply because one may be able to infer something about Quentin’s state of mind from the alleged hearsay statements does not mean the statements fall within the state-of-mind exception. In fact, a reading of Apanovitch demands precisely the opposite result.

According to our count, there were twenty-four actual hearsay statements admitted at the hearing. However, many of the statements were repetitive, and, for our discussion, we have selected only those statements that represent each type of statement involved.

Crystal Noel, an acquaintance of appellee, testified that Quentin told her, “Daddy won’t let me call Mommy,” and that he “didn’t want to go to Daddy’s house.” Jean Mitchell, a neighbor of Quentin’s grandmother, testified that Quentin begged to “stay at his grandmother’s house,” and that “his dad is mean to him and pulled his hair.” Similarly, Marilyn Kirchner, Quentin’s grandmother, testified that Quentin said he would “never get to see” his grandmother and that he asked her about his mother’s affair.

In addition, appellee testified that Quentin often begged “to go somewhere so we won’t be home when Daddy comes.” Appellee also testified that Quentin asked her, “Why don’t anybody ever love on me when I go there, Mom?” As discussed above, none of these statements fits within the state-of-mind exception because none are statements of Quentin’s then-existing subjective qualities.

Also presented at the hearing were several statements constituting hearsay within hearsay. Kirchner testified that Quentin said, “Daddy says Mommy slept with Butch Witherspoon.” Similarly, according to appellee’s testimony, Quentin stated that appellant said, “[H]e [Quentin] would never see Mom again, it was going to be like she was dead.” Appellee also testified that Quentin stated that Kirchner had told him, “Your mom is a little bitch.”

Under Evid.R. 805, to be admissible, both layers of hearsay (both Quentin’s statement and the third-party’s statement) must be admissible under one of the exceptions provided in the evidence rules. We find that none of Quentin’s statements falls within an exception to the hearsay rule. Therefore, each of the double hearsay statements must be excluded on hearsay grounds.

Finally, Mitchell testified that Quentin told her that he “is afraid.” Lorna Williams, a co-worker of appellee, stated that Quentin said he “was getting nervous.” These two statements are admissible under the state-of mind exception in Evid.R. 803(3). However, our review of the record reveals that these two statements are the only statements that were properly admitted.

The Rules of Evidence were written to give a basic, fair trial to all litigants. Appellee, attempting to establish the child’s best interest, presented hearsay statements against appellant. Appellant had a right to have Quentin testify, either in person if the child was found competent, or, if not, by proper hearsay testimony. The magistrate apparently attempted to circumvent the erroneous ruling by holding that appellant’s animosity, rather than the hearsay testimony, was the crux of the decision. The trial court then adopted the magistrate’s decision, stating, “It does not appear that this hearsay evidence had any affect [sic ] on the magistrate’s decision.” However, this finding does not cure what occurred and does not remedy the fact that appellant did not have the complete and full hearing to which he was entitled.

Due to the extent of hearsay evidence that was improperly admitted in this case, we find that the magistrate’s ruling constituted error, and that the error cannot be deemed harmless under Civ.R. 61. Accordingly, appellant’s second assignment of error is sustained.

Assignment of Error No. 3:

“The findings of fact and conclusions of law failed to comply with Rule 52 in that it failed to find facts adequate to support the ruling of the court.”

Assignment of Error No. 4:

“The findings and judgment of the trial court [are] against the manifest weight of the evidence.”

Assignment of Error No. 5:

“The trial court erred in overruling the motion for a new trial.”

Because our ruling on appellant’s second assignment of error renders assignments of error three, four, and five moot, we decline to discuss those assignments of error. See App.R. 12(A)(1)(c). This matter is remanded to the trial court for a de novo hearing to determine custody.

Judgment accordingly.

Walsh, J., concurs separately. William W. Young, J., concurs in part and dissents in part.

1 . Although the court’s ruling was legally correct as applied to the limited evidence that was actually before it, we realize that our ruling on the second assignment of error could allow additional testimony to be received. We recognize the possibility that additional testimony may establish that appellee’s alleged adultery did, in fact, have a direct, adverse impact on Quentin's well-being.

2 . The state-of-mind exception is intended to extend to the following type of statements: "I am afraid”; "I like Norb”; "I am depressed”; and "I am happy.” Weissenberger, Ohio Evidence (1999), Chapter 803, at 352.