[Cite as Hall v. Hall, 2017-Ohio-580.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
ALLISON S. HALL                                :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellant   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 16-COA-034
JOSHUA D. HALL                                 :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Ashland County Court
                                                   of Common Pleas, Domestic Relations
                                                   Division, Case No. 14-DIV-094



JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            February 13, 2017


APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

NORMAN MILLER, JR.                                 JEFFREY HAWKINS
343 S. Crownhill Road                              One Cascade Plaza
Box 149                                            Suite 2210
Orrville, OH 44667                                 Akron, OH 44308
[Cite as Hall v. Hall, 2017-Ohio-580.]


Gwin, P.J.

        {¶1}     Appellant appeals the judgment entry of the Ashland County Court of

Common Pleas, Domestic Relations Division, overruling her objections to the magistrate’s

decision designating appellee as the residential and custodial parent of the minor child.

                                         Facts & Procedural History

        {¶2}     Appellant Allison Hall and appellee Joshua Hall were married in October

2010 and are the parents of one minor child, F.H, born December 12, 2012. Appellant

filed a complaint for divorce on May 29, 2014. Appellee filed an answer on June 30, 2014.

In November of 2014, appellant was designated the temporary residential parent and

legal custodian of F.H. Both parents sought to be the permanent residential parent and

legal custodian of F.H.

        {¶3}     A trial was held on appellant’s complaint over several days starting

November 3, 2015. Witnesses included appellant, appellee, the Guardian Ad Litem

Joseph Kearns, appellant’s pastor, father, mother, and friend, along with appellee’s

father, mother, and ex-wife. Also called as witnesses were several employees from the

daycare F.H. attends.

        {¶4}     On direct examination, appellant’s attorney questioned appellant regarding

her experience with the GAL, including the amount of time he spent with her and the

concerns she discussed with him. Appellant’s attorney asked her, “And do you remember

some of the concerns that you wanted to talk about?” Appellant responded, “Some of the

concerns I had were her education, and also just how my ex would act with her because

I was concerned because he would rape me on a nightly basis when we were together.”
Ashland County, Case No. 16-COA-034                                                       3


       {¶5}   Counsel for appellee objected to the testimony. Counsel for appellant

responded that he was asking what appellant discussed with the GAL and the foundation

for the testimony was that it was what she told the GAL. The magistrate stated he would

allow it because it was not offered to prove the truth of the matter asserted and stated, “I

will admit that as far as what she told the GAL, not the fact that she was raped.” Counsel

for appellant then moved on to questioning appellant about the other concerns she

discussed with the GAL and did not return to the subject of sexual abuse.

       {¶6}   During the cross-examination of appellee and over an objection by

appellee’s counsel, appellant’s counsel asked appellee if he was asked by the GAL about

the claims against him regarding sexual impropriety. Appellee testified that the GAL had

asked him about it, he told the GAL he would never abuse anyone, but he could not

remember what else he told him.

       {¶7}   Joseph Kearns, the GAL for F.H., testified regarding his report and his

recommendation. Kearns testified it would be in the best interest of F.H. for appellee to

be named the residential and custodial parent of F.H.         Upon cross-examination by

appellant’s attorney, Kearns testified he asked appellee about appellant’s allegations that

she was sexually abused, and Kearns put appellee’s answer in the report. Kearns stated

appellee denied he consciously did anything and what was explained to Kearns was that

she was lying in bed and he, in a semi-conscious, somewhat sleep state, had engaged in

some sort of marital-type relations with the person he found lying next to him in bed.

       {¶8}   Appellant reported to Kearns that appellee told her he did not realize he was

doing anything due to his sleep state. It was Kearns’ belief that this was confirmation of

what appellee told him later on. Kearns testified appellant told him what happened,
Ashland County, Case No. 16-COA-034                                                        4


appellee gave an explanation, and Kearns left it at that. Further, there was no police report

to look at about any of the allegations.

       {¶9}   When asked whether he had concerns about the allegations with regards

to F.H., Kearns testified it was not an issue because F.H. did not sleep in the same bed

as appellee. Kearns stated if he had any concerns of inappropriate sexual activity

between the child and either appellant or appellee, it would have been the first thing on

his report.   Upon further questioning by appellant’s attorney, Kearns again stated

appellant told him what appellee told her, Kearns asked appellee about it, and appellee

gave Kearns the same explanation he gave appellant.

       {¶10} The magistrate asked Kearns whether appellant’s allegations were of

concern to him in developing his recommendation as to the best interest of F.H. Kearns

testified that he talked to both parties, the explanation was plausible, and he thus never

had a concern as it relates to F.H.

       {¶11} The magistrate issued a decision on January 6, 2016. The magistrate found

appellee more credible than appellant. The magistrate considered the applicable factors

contained in R.C. 3109.04(F)(1). The magistrate noted he took into consideration the

GAL’s testimony, along with the GAL’s report and recommendation, which was admitted

as an exhibit under seal. The magistrate concluded it was in the best interest of F.H. for

appellee to be designated as the residential and custodial parent.

       {¶12} Appellant filed objections and supplemental objections to the magistrate’s

decision. Appellee filed a response to appellant’s objections. The trial court issued a

judgment entry on June 24, 2016. The trial court first found that, upon review of the

transcript, appellant’s counsel was offering her testimony as to the sexual abuse not to
Ashland County, Case No. 16-COA-034                                                        5


prove she was abused on a nightly basis, but to show she discussed this issue with the

GAL. Further, that the magistrate let this testimony in as such and, if appellant interpreted

the magistrate’s ruling as preventing her from pursuing the allegations further rather in

the context of the question being asked, appellant did not proffer any anticipated

testimony regarding these allegations. The trial court also found appellant was not

prevented from fully cross-examining both appellee and the GAL regarding the

allegations. The trial court overruled appellant’s objections to and adopted the

magistrate’s decision. A final decree of divorce was issued on August 26, 2016.

       {¶13} Appellant filed an appeal of the judgment entry of the Ashland County Court

of Common Pleas, Domestic Relations Division, and assigns the following as error:

       {¶14} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT OVERRRULED APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S

PROPOSED DECISION AND VIOLATED APPELLANT’S RIGHT TO A FAIR TRIAL AND

DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE

OHIO CONSTITUTION.”

                                                 I.

       {¶15} In her assignment of error, appellant argues the trial court violated her due

process rights by overruling her objections to the magistrate’s decision when the

magistrate limited her ability to present evidence of sexual abuse during the trial.

Specifically, appellant argues she was not given a full and fair opportunity to be heard

when the magistrate refused to let her testify about sexual abuse and refused to let her

cross-examine appellee as to sexual abuse allegations.
Ashland County, Case No. 16-COA-034                                                         6


       {¶16} The due process clause of the Fourteenth Amendment requires an

opportunity to be heard before an impartial observer, and provides the right to confront

and cross-examine witnesses prior to the deprivation of life, liberty, or property interest.

Shimko v. Lobe, 124 Ohio App.3d 336, 706 N.E.2d 354 (10th Dist. Franklin 1997).

       {¶17} Appellant argues this Court’s case of Cohen v. Cohen, 5th Dist. Fairfield

No. 99CA52, 2001 WL 61081 (Jan. 22, 2001), is analogous to the instant case and this

Court should find appellant’s due process rights were violated as we did with the appellant

in Cohen. In Cohen, the mother of child filed a motion to modify the allocation of parental

rights after she alleged the father of the child sexually abused the minor child. Id. During

the hearing, the father was called on direct examination, but the trial court then excused

him from attending the hearing the next day, thus foreclosing his cross-examination by

the mother. Id.

       {¶18} In Cohen, we found the appellant was denied due process when the parties

were given different degrees of latitude to develop testimony as to the validity, or lack

thereof, of the allegations.    Id.   “The trial court repeatedly afforded appellee the

opportunity to present evidence tending to show that the allegations of sexual abuse were

not substantiated and were false and unreasonable. However, appellant was prevented

by the trial court from presenting testimony to show that appellant may have been

reasonable in her pursuit of the sexual abuse allegations * * *.” Id. In addition to appellant

not being able to cross-examine appellee regarding the allegations, appellee’s expert was

permitted to testify as to his opinion that the child was not sexually abused, but appellant’s

expert was not permitted to testify about his opinion that the child was sexually abused.

Id. We concluded, “this question of fairness is present throughout the proceedings and
Ashland County, Case No. 16-COA-034                                                       7


supports this court’s finding that appellant was not given a full and fair opportunity to be

heard on the motions * * *.” Id.

       {¶19} We find this case distinguishable from Cohen. First, unlike in Cohen, the

abuse allegations were in regards to appellant and appellee, and there was no evidence

or testimony as to any abuse allegations with regards to the minor child. Next, unlike in

Cohen, appellant was permitted to cross-examine appellee regarding what he told the

GAL about the allegations. While the magistrate initially instructed appellant’s attorney

to rephrase the question, counsel for appellant was permitted to ask appellee whether he

was asked by the GAL about the abuse allegations and how he responded to the GAL as

appellee’s further objections to such testimony were overruled by the magistrate.

Additionally, unlike in Cohen, appellant and appellee were not given different degrees of

latitude to develop testimony as to the validity of the allegations.

       {¶20} Further, both the GAL and the report of the GAL, which was admitted as an

exhibit, addressed appellant’s allegations.     The magistrate specifically stated in his

decision that he considered the report and recommendation of the GAL. The report of

the GAL states the GAL was informed of the allegations made by appellant and also

details appellee’s response when the GAL asked him about the allegations. Appellee

denied consciously doing anything and stated he did not realize what he was doing due

to his sleep state. The GAL similarly testified that appellant made the allegations and

appellee denied doing anything consciously and instead was in a sleep state.

       {¶21} Additionally, the magistrate permitted counsel for appellant to extensively

cross-examine the GAL regarding his consideration of these allegations.           The GAL

testified there was no concern with regards to the minor child as it related to the child’s
Ashland County, Case No. 16-COA-034                                                      8


best interest because he talked to both parents and the explanation regarding the

allegations was plausible.

       {¶22} Finally, when appellant sought to testify regarding the sexual abuse

allegations, the testimony was offered to show what issues she discussed with the GAL.

The magistrate thus permitted appellant to answer the question that was asked and

allowed the testimony “as far as what she told the GAL, not the fact that she was raped.”

Appellant then testified about other issues she discussed with the GAL and there was no

further inquiry into the sexual abuse allegations. Appellant did not proffer any additional

or anticipated testimony as to the allegations.

       {¶23} Based on the foregoing, we find this case distinguishable from Cohen.

Further, we find appellant’s due process rights were not violated in this case.

       {¶24} Appellant’s assignment of error is overruled and the judgment entry of the

Ashland County Court of Common Pleas, Domestic Relations Division, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
