Bohannon v. Bohannon

2018 Ohio 2919

• Court: Ohio Court of Appeals
• Decided: July 25, 2018
• Docket: 28906
• Status: Published

Opinion

[Cite as Bohannon v. Bohannon, 2018-Ohio-2919.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

TIMOTHY BOHANNON C.A. No. 28906

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE LYNN BOHANNON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. DR-2008-01-0086

DECISION AND JOURNAL ENTRY

Dated: July 25, 2018

CARR, Judge.

{¶1} Appellant Timothy Bohannon (“Father”) appeals the judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, that denied his three contempt

motions against appellee Lynn Bohannon (“Mother”), and overruled his objections to a Child

Support Enforcement Agency (“CSEA”) administrative review recommendation. This Court

reverses and remands.

I.

{¶2} Father and Mother were divorced in 2010, at which time they had three

unemancipated children. Mother was named the residential parent, and Father received a

combination of both supervised and unsupervised parenting time with the children. In addition,

Father was ordered to pay child support. After various post-decree issues arose, Father and

Mother entered into an agreed judgment entry on April 24, 2014, wherein Father was to receive

parenting time with the two remaining unemancipated children for one-half of the summers and 2

school breaks, Wednesday overnight visitation with the youngest child, K., and telephone contact

with both children twice a week.

{¶3} Over the course of time, CSEA recommended increases in the amount of Father’s

child support obligation after conducting administrative review hearings. Father filed objections

with the domestic relations court after every administrative review recommendation. The most

recent objection, which gives rise to one of his assignments of error in the instant appeal, was

filed on November 22, 2016. By that time, only K. remained unemancipated and the subject of a

child support order. That objection requested a downward deviation of child support based on an

adjustment for Father’s cost of living.

{¶4} In addition, Father filed three post-decree motions for Mother to show cause why

she should not be held in contempt for violating parenting time orders. In the first, filed June 16,

2016, Father alleged that Mother prevented him from exercising parenting time with K. for the

one-half of the summer to which he was entitled. In the second, filed October 6, 2016, he

alleged that Mother interfered with his ability to have telephone contact with K., as well as

Wednesday and every other weekend visits with the child. In the third motion to show cause,

filed March 2, 2017, Father alleged that Mother continued to deny him his ordered parenting

time.

{¶5} Although the trial court issued multiple notices for hearings on the motions and

objections to occur on October 12, 2016, December 15, 2016, February 10, 2017, and May 9,

2017, the matters were not actually heard until the May 2017 date. In all instances, the notices of

hearings noted the starting time for the hearing, but did not identify the length of time allotted for

the hearing. The May 9, 2017 hearing was scheduled to begin at 1 p.m. Both parties filed

witness and exhibit lists in advance of the hearing. Father notified the court and Mother that he 3

intended to present 18 exhibits and four witnesses, while Mother notified the court and Father

that she intended to present nine exhibits and six witnesses. In addition, the domestic relations

court had appointed a guardian ad litem for K. Based on the guardian’s time log filed with the

court, she spent over 14 hours investigating issues relevant to the pending motions, one hour in

court during the May 9, 2017 hearing, and approximately six hours preparing a report.

{¶6} At the beginning of the hearing on Father’s objections to the CSEA administrative

recommendation and three contempt motions, the magistrate informed the parties that they

would have a total of one hour in which to present evidence. The magistrate gave each party ten

minutes to address the issue of the CSEA recommendation and Father’s request for a downward

deviation of his child support obligation, and twenty minutes each to address all three contempt

motions. When Father indicated that he would need more time, the magistrate reiterated that she

had scheduled the hearing for one hour and that neither party had moved the court for additional

time in advance.

{¶7} The magistrate set a timer on her computer and held the parties to their allotted

times. Only Father and Mother testified. None of the listed witnesses on either party’s witness

list testified. Neither did the guardian ad litem, whose time log indicated she was present for the

hearing, render a report.

{¶8} The magistrate subsequently issued a one-and-a-half page decision in which she

denied Father’s three contempt motions “for lack of evidence” and overruled his objections to

the CSEA administrative review recommendation. Father filed timely objections, which he

supplemented after the filing of the transcript. In addition to challenging the magistrate’s factual

findings, Father argued that the magistrate unreasonably limited his ability to present evidence in

support of his motions and objections by imposing arbitrary time restrictions without prior notice 4

at the hearing. Mother responded in opposition. The domestic relations court issued a judgment

in which it denied Father’s objections to the magistrate’s decision, denied his three contempt

motions, and overruled his objections to the CSEA recommendation and request for a downward

deviation of his child support obligation. Father filed a timely appeal in which he raises three

assignments of error for review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND VIOLATED FATHER’S DUE PROCESS RIGHTS IN LIMITING THE FATHER’S TIME TO PRESENT HIS CASE.

{¶9} Father argues that the domestic relations court erred by restricting the time in

which he was able to present his case on three contempt motions and objections to CSEA

administrative review recommendations. This Court agrees.

{¶10} As an initial matter, this Court acknowledges a trial court’s “inherent authority to

control its own docket and manage the cases before it.” In re A.S., 9th Dist. Summit No. 26462,

2013-Ohio-1975, ¶ 24, citing Flynn v. Flynn, 10th Dist. Franklin No. 03AP-612, 2004-Ohio-

3881, ¶ 10, citing Mayer v. Bristow, 91 Ohio St.3d 3, 7 (2000). The exercise of that authority is

reviewed for an abuse of discretion. See In re A.S. at ¶ 24, citing Flynn at ¶ 10. An abuse of

discretion arises where the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). In addition, in matters involving child

custody and visitation, “‘the trial court’s discretion must be exercised in a manner which best

protects the interest of the child.’” In re A.S. at ¶ 24, quoting Flynn at ¶ 15.

{¶11} In this case, Father sought a downward deviation from the child support

obligation recommended by CSEA, an issue tangential to custody and visitation issues; as well 5

as multiple contempt findings against Mother, who allegedly had established a pattern of

interfering with Father’s parenting time. Accordingly, the trial court was required to exercise

sound discretion in consideration of the best interest of the child in its case management when

addressing those issues.

{¶12} A March 8, 2017 notice of hearing to address Father’s three contempt motions

and his objection to the CSEA administrative review recommendation scheduled the matters to

be heard on May 9, 2017, at 1 p.m. When the parties appeared for the hearing, they learned for

the first time that the magistrate had allotted only one hour to hear all four pending matters.

When Father protested the limitation on his time to present evidence in support of his motions,

the magistrate refused to extend time, telling the parties that no one had moved for additional

time in advance of the hearing.

{¶13} In Smith v. McLaughlin, 9th Dist. Summit No. 24890, 2010-Ohio-2739, this Court

addressed a similar issue. We overruled an assignment of error which alleged that the domestic

relations court erred by limiting a post-decree evidentiary hearing regarding child support and

parenting time to three hours without giving the parties notice of the time limitation. Id. at ¶ 14.

In Smith, the trial court had issued a notice of hearing, scheduling the matters for a specific date

and time, and noting that the hearing would take place “‘for 3 hours.’” Id. at ¶ 13. We noted

that the appellant had notice of the time restriction and seven months in which to move the trial

court for additional time, if she believed she needed it. Id. at ¶ 14.

{¶14} The instant case is distinguishable from Smith. Here, none of the notices of

hearing identified the amount of time allotted for the hearing. Instead, they merely indicated the

time that the hearing would begin. Father, therefore, had no notice that he would be limited in

his presentation of evidence on four issues, including cross-examination of Mother’s witnesses, 6

to a mere 30 minutes. In addition, he had no notice that he needed to move the trial court for

additional time in advance of the hearing. On the other hand, the magistrate was aware, based on

witness and exhibit lists filed by both parties, that each side intended to call multiple witnesses

and introduce numerous exhibits for the court’s consideration. Moreover, the parties did not file

any stipulations, and were not able to stipulate to any facts on the record prior to the hearing,

leaving all critical issues in dispute. Therefore, Father was deprived of the opportunity to have

the trial court reasonably consider the multiple issues before it.

{¶15} The Fifth District Court of Appeals addressed a similar situation. In Brewer v.

Brewer, 5th Dist. Licking No. 08 CA 0040, 2009-Ohio-249, our sister district concluded that the

appellant had been “afforded ample opportunity to present his arguments to the trial court as

evidenced by the numerous decisions issued by the Magistrate in this case.” Id. at ¶ 31. In the

instant case, however, not only were Father’s issues not addressed on prior occasions, but his

multiple contempt motions had been pending for a significant amount of time. In fact, his first

contempt motion had been pending for approximately 11 months before it finally came before

the trial court. Given the fact that there is no way to go back in time and restore missed

parenting time, the best a parent can hope for is that he or she will be awarded future substitute

time and incentives to deter the other parent from further interference. When the child at issue is

a teenager, as here, timely and full consideration of the issues is even more critical.

{¶16} This Court acknowledges the general rule requiring a party challenging the

exclusion of evidence to proffer the excluded evidence. See Smith, 2010-Ohio-2739, at ¶ 14

(also noting that the appellant had not proffered any evidence she would have presented, had the

trial court allowed additional time at the hearing). In addition, Evid.R. 103 provides in relevant

part: 7

Error may not be predicated upon a ruling which * * * excludes evidence unless a substantial right of the party is affected, and * * * the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination.

Evid.R. 103(A)(2).

{¶17} In Balliett v. Horan, 5th Dist. Ashland No. 97 COA 01204, 1998 Ohio App.

LEXIS 3540 (July 27, 1998), the appellate court declined to consider the appellant’s argument

that he was precluded from engaging in a “full presentation of evidence” in the time allotted by

the trial court. Id. at *10. The juvenile court had scheduled a six-hour hearing, allotting three

hours for each parent, on pending issues regarding shared parenting, visitation, and contempt.

Id. at *9. The trial judge limited the time, because she was retiring shortly thereafter and could

not accommodate a longer hearing on her docket. Id. at *10-11. However, she had given the

parties a choice to either accept those time constraints or continue the hearing until the new judge

had taken the bench and seek additional time. Id. The parties chose to proceed within the six-

hour time limit. Id. at *11. Recognizing both the trial court’s “control over the mode and order

of presenting evidence[,]” as well as the appellant’s lack of proffer of evidence necessary for a

“full presentation of evidence[,]” the appellate court wrote that it had “no way of passing on the

relevance or completeness of any evidence not proffered.” Id. at *10-12.

{¶18} This Court distinguishes the instant challenge from Balliett in several significant

ways. First, the magistrate did not give Father and Mother a choice in advance to either accept

the one-hour time limit for hearing or reschedule for a date when the court would have additional

time on its docket to hear the matters. In fact, the domestic relations court had not even given

the parties advance notice of any time restrictions on the presentation of evidence. Second,

Father provided greater insight to the trial court regarding the evidence he would have presented 8

than the appellant in Balliett who merely sought more time for a “full presentation of evidence.”

Id. at *10. In In re A.S., 2013-Ohio-1975, this Court concluded that the appellant’s “two motions

essentially constitute a proffer of the evidence he sought to introduce and was entitled to

introduce.” Id. at ¶ 25. In this case too, Father filed detailed affidavits with each of his three

contempt motions. He further set out relevant factual allegations in his objections to the CSEA

recommendation. Accordingly, we conclude that he effectively proffered additional evidence

that he might have presented, had the magistrate not severely limited the time allotted for

hearing.

{¶19} Finally, the domestic relations court appointed a guardian ad litem at Father’s

request to investigate the pending issues. Although the guardian’s time log indicated that she

attended the hearing and prepared a report, she did not testify. It is only reasonable to conclude

that the time restrictions imposed by the magistrate for the hearing precluded the parties from

presenting this critical perspective for consideration, given that the guardian was on the witness

list and present for the hearing.

{¶20} Under these circumstances, the domestic relations court abused its discretion

when it unreasonably limited the time for hearing on the four pending motions/objections,

summarily overruled Father’s objection to the time limitation, and then denied Father’s contempt

motions “for lack of evidence.” Father’s first assignment of error is sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO FIND MOTHER IN CONTEMPT FOR INTERFERENCE WITH AND FAILURE TO ABIDE BY THE COURT ORDERS FOR PARENTING TIME.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD A DEVIATION DOWNWARD FROM THE CHILD SUPPORT 9

ORDER WHICH ISSUED AFTER THE CSEA ADMINISTRATIVE REVIEW AND ERRED IN FAILING TO GRANT FATHER’S OBJECTION.

{¶21} In his second and third assignments of error, Father argues that the domestic

relations court erred by denying his contempt motions and overruling his objections to the CSEA

administrative review recommendations. Based on this Court’s resolution of the first assignment

of error, however, the second and third assignments of error have been rendered moot.

Accordingly, this Court declines to address them. See App.R. 12(A)(1)(c).

III.

{¶22} Father’s first assignment of error is sustained. This Court declines to address the

second and third assignments of error. The judgment of the Summit County Court of Common

Pleas, Domestic Relations Division, is reversed and the cause remanded for further 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. 10

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

SCHAFER, P. J. CALLAHAN, J. CONCUR.

APPEARANCES:

CAROLYN SOEDER, Attorney at Law, for Appellant.

ROBERT ROE FOX, Attorney at Law, for Appellee.

CHANDRA M. MUSTER, Guardian ad Litem.