Berete v. Berete , 2021 Ohio 2941 ( 2021 )

[Cite as Berete v. Berete, 2021-Ohio-2941.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jaka Berete, :
Plaintiff-Appellee, :
No. 20AP-478
v. : (C.P.C. No. 18DR-2581)
Osman Berete, : (REGULAR CALENDAR)
Defendant-Appellant, :
Alousseny Diakite, :
Intervenor-Appellee. :
D E C I S I O N
Rendered on August 26, 2021
On brief: The Behal Law Group LLC, Robert J. Behal, and
DeAnna J. Duvall, for appellee. Argued: DeAnna J. Duvall.
On brief: Alvaro G. Velez, for appellant. Argued: Alvaro G.
Velez.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
DORRIAN, P.J.
{¶ 1} Defendant-appellant, Osman Berete, appeals a September 16, 2020
judgment entry decree of divorce ("decree") from the Franklin County Court of Common
Pleas, Division of Domestic Relations. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} The parties were married in Xenia, Ohio on October 15, 1999, and four
children were born as issue of the parties' marriage. On July 2, 2018, plaintiff-appellee,
No. 20AP-478 2
Jaka Berete, filed a complaint for divorce. Appellant filed an answer and counterclaim on
August 23, 2018, and an amended answer and counterclaim on November 28, 2018.
{¶ 3} On June 27, 2019, the magistrate found it necessary to appoint forensic
accountant W. Dana Lavelle, certified public accountant, to determine appellant's income
for purposes of child support and provide an analysis as set forth in R.C. 3119.01. Lavelle
provided his analysis of appellant's income in an affidavit filed with the court on
December 13, 2019.
{¶ 4} On December 30, 2019, appellee filed a motion for vocational evaluation
based on issues raised in Lavelle's affidavit. In her motion for vocational evaluation,
appellee asserted Lavelle's investigation uncovered evidence indicating appellant is
underemployed causing appellee to believe a vocational evaluation was necessary to
determine appellant's earning ability for purposes of determining child support. Appellee
requested the court order appellant to submit to a vocational evaluation to be performed by
Dr. Richard P. Oestreich, Ph.D., CRC. Appellee's request was heard at a hearing before the
magistrate and subsequently granted pursuant to a magistrate's order filed February 13,
2020, wherein Dr. Oestreich was appointed to conduct a vocational evaluation of appellant.
Dr. Oestreich conducted a vocational evaluation of appellant, prepared a vocational
assessment report ("report") of appellant on March 27, 2020, and provided copies of his
report to appellant and appellee's counsel.
{¶ 5} Unresolved issues related to the termination of the parties' marriage,
including appellant's income for purposes of child support, were heard before the court
during a contested trial. Prior to trial, the parties reached an agreement regarding parental
rights and responsibilities for their minor children and filed a joint plan for shared
parenting ("shared parenting plan"), which was incorporated into a shared parenting
decree filed November 7, 2019 and made an order of the court. The shared parenting plan
reflects the amount of child support to be paid by appellant to appellee was to be
determined. At the time of trial, three of the parties' children were minors. Pursuant to
orders from the Franklin County Probate Court, appellee is the sole guardian of the parties'
oldest son who is dependent due to autism.
{¶ 6} Appellee and appellant were the only witnesses to testify at trial. At the
conclusion of trial, appellee moved to admit exhibits, including Dr. Oestreich's report
No. 20AP-478 3
marked as appellee's exhibit No. 5, and appellant moved to admit Lavelle's affidavit,
marked as appellant's exhibit G. In addition to other exhibits not relevant to the instant
matter, the trial court admitted exhibits No. 5 and G, stated the trial court would accept all
reports ordered by the court.
{¶ 7} On September 16, 2020, the trial court issued a decree of divorce terminating
the parties' marriage and relevant to the case before us, determined appellant's income to
be $50,000 per year for purposes of child support.
II. Assignments of Error
{¶ 8} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] The Trial Court made a reversal [sic] error when it
admitted into evidence Appellee's vocational expert witness'
hearsay report without his testimony and without
authentication over Appellant's objection.
[II.] The Trial Court made a reversable error by failing to
permit Appellant from Cross-examining Appellee's vocational
expert witness concerning this report and his qualifications.
III. Analysis
A. Standard of Review
{¶ 9} Generally, the admission or exclusion of evidence is within the discretion of
the trial court, so long as that discretion is exercised in line with the rules of procedure and
evidence. Parsons v. Parsons, 10th Dist. No. 07AP-541, 2008-Ohio-1904, ¶ 22, citing
Swearingen v. Swearingen, 10th Dist. No. 06AP-698, 2007-Ohio-1241, ¶ 13, citing Rigby
v. Lake Cty., 58 Ohio St.3d 269, 271 (1991). An appellate court will not reverse a trial court's
decision to admit or exclude evidence absent an abuse of discretion. Parsons at ¶ 22, citing
Swearingen at ¶ 13, citing State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317.
In order for the decision of the trial court to amount to an abuse of discretion, the decision
must be "arbitrary, unreasonable or unconscionable." Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). However, " '[i]n the absence of plain error, a failure to object to
evidence presented at trial constitutes a waiver of any challenge on appeal.' " Brooks-Lee v.
Lee, 10th Dist. No. 03AP-1149, 2005-Ohio-2288, ¶ 43, quoting Barnett v. Thornton, 10th
Dist. No. 01AP-951, 2002-Ohio-3322, ¶ 20, citing State v. Robertson, 90 Ohio App.3d 715,
No. 20AP-478 4
728 (2d Dist.1993). In the civil context, an appellate court only applies the plain error
doctrine in extremely rare cases when the asserted error " 'seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.' " Jarvis v. Hasan, 10th Dist. No. 14AP-
578, 2015-Ohio-1779, ¶ 33, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 123 (1997).
B. First Assignment of Error
{¶ 10} In his first assignment of error, appellant contends the trial court made a
reversable error when it admitted into evidence appellee's vocational expert's report
without his testimony and without authentication over appellant's objection. Appellee
contends appellant's assignment of error regarding the admission of Dr. Oestreich's report
is not properly before the court because appellant failed to raise the argument in the trial
court. The trial court stated it would accept into evidence Lavelle's affidavit and Dr.
Oestreich's report because the reports were ordered by the trial court.
{¶ 11} Regarding rulings on evidence, Evid.R. 103(A)(1) provides in relevant part:
Effect of erroneous ruling. Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and
(1) Objection.
In case the ruling is one admitting evidence, timely objection
or motion to strike appears of record stating the specific ground
of objection, if the specific ground was not apparent from the
context[.]
(Emphasis added.)
{¶ 12} In support of her position that appellant failed to raise argument as to the
admission of Dr. Oestreich's report, appellee argues the record is devoid of any objection,
specific or otherwise, raised by appellant as to Dr. Oestreich, his credentials, his report, the
reference and use of his report at trial, or the introduction of the report into evidence.
Although appellant argues in support of his first assignment of error that he objected to the
admission of Dr. Oestreich's report, appellant does not provide citation to the record that
would support his argument with regard to authentication or hearsay. Notably, in his brief,
where appellant asserts he did object on the record, appellant's citation to the record is
blank. App.R. 103(A)(1). (See Appellant's Brief at 15 stating "Mr. Oestreich's vocational
No. 20AP-478 5
report was * * * entered into evidence – without authentication – over the objection of
Appellant. (Doc pg ).") As there was no objection made to the admission of Dr. Oestreich's
report specifically on grounds of authentication or hearsay, we will apply a plain error
standard of review to this assignment of error.
{¶ 13} In support of his first assignment of error, appellant argues Dr. Oestreich's
report was not authenticated. Evid.R. 901(A) states: "The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims."
{¶ 14} Appellee introduced into evidence as exhibit No. 5 Dr. Oestreich's report
while testifying on direct. Specifically, appellee testified she recognized the exhibit as the
report of Dr. Oestreich, in which Dr. Oestreich opined appellant's income should be around
$50,000. As noted above, appellant did not raise any objection during appellee's testimony
regarding Dr. Oestreich's report or his findings. During his own testimony, appellant
acknowledged he met with Dr. Oestreich at appellee's counsel's office and that Dr. Oestreich
authored a report, which appellant identified in his case as exhibit Z.1 Appellant also
testified that Dr. Oestreich is "a very knowledgeable man" and that Dr. Oestreich's "report
is good." (Tr. Vol. IV at 209-11.)
{¶ 15} While addressing the admission of appellee's exhibit No. 5, the trial court
stated to appellant: "[Appellee's] Exhibit 5 is the report of Dr. Oestreich, the vocational
evaluation. You both addressed this. I understand that you do not agree with his findings,
but you agree that this is the report that you got and you participated in; is that correct?"
Appellant responded "Correct. Yes." (Tr. Vol. IV at 263.) The trial court then accepted into
evidence appellee's exhibit No. 5.
{¶ 16} Therefore, for the reasons articulated above, we do not find the trial court
erred on grounds of authentication, plainly or otherwise, in admitting Dr. Oestreich's
report.
{¶ 17} Regarding the first assignment of error, appellant also asserts the trial court
erred admitting Dr. Oestreich's report because it contained inadmissible hearsay. In
support, appellant points to a workers' compensation case from the Eleventh District and a
1Appellant's trial notebook was submitted electronically on a USB drive. The content page of appellant's trial
notebook reflects exhibit Z, "Vocational assessment, by DR. [sic] Richard P. Oestreich, PhD, CRC."
No. 20AP-478 6
zoning case from the Ninth District. Appellant also argues the trial court was inconsistent
in its rulings regarding admission of hearsay pointing to appellee's objections and the
court's questions regarding introduction of a promissory note and timesheets. However,
appellant's arguments do not contemplate hearsay considerations in the context of reports
of court-appointed investigators. See R.C. 3109.04(C) and Civ.R. 75(D).
{¶ 18} Pursuant to Evid.R. 801(C): " 'Hearsay' is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted." Generally, hearsay is not admissible unless one of several
exceptions to the hearsay rule is applicable. In re J.B., 10th Dist. No. 11AP-63, 2011-Ohio-
3658, ¶ 6, citing Evid.R. 802-07.
{¶ 19} In Shirvani v. Momeni, 10th Dist. No. 09AP-791, 2010-Ohio-2975, this court
observed that "appellate courts in Ohio have held that trial courts may consider the report
of a court-appointed investigator despite the hearsay inherent in the report." Shirvani at
¶ 11, citing Martin v. Martin, 3d Dist. No. 9-03-47, 2004-Ohio-807, ¶ 19, citing Webb v.
Lane, 4th Dist. No. 99CA12 (Mar. 15, 2000). The Third District in Martin held:
Appellate courts in Ohio have held that trial courts may
consider the report of a court appointed investigator despite
the hearsay inherent in the report. See Webb v. Lane, [4th Dist.
No. 99CA12 (Mar. 15, 2000)]; Sayre v. Hoelzle-Sayre, [100
Ohio App.3d 203 (3d Dist.1994)]. "As long as the investigator
is made available for cross examination, the parties' due
process rights are protected, and a court may consider the
report, even without oral testimony by the investigator, and
despite any hearsay that may be contained in the report." Id.The language of both R.C. 3109.04(C) and Civ.R. 75(D)
implicitly gives the trial court the authority to admit custody
investigation reports as evidence, since they can be ordered by
the court and the investigator is subject to cross examination.
Scarbrough v. Scarbrough, [9th Dist. No. 00CA007743
(July 18, 2001)]. The court must not base its decision entirely
on the report of the investigator though. Hillard v. [Hillard, 29
Ohio App.2d 20 (12th Dist.1971)]. The report must contain
sufficient facts from which the judge may draw his conclusion.
Nolte v. Nolte, [60 Ohio App.2d 227 (8th Dist.1978)].
Martin at ¶ 19. The court further reasoned:
Neither party in this case chose to subpoena the investigator
and exercise his/her right to cross-examine the investigator as
No. 20AP-478 7
to the contents of his report. Both parties were presented with
and took advantage of the opportunity to examine the report of
the investigator prior to trial. Both parties were also free to
testify themselves in opposition to findings in the report and
were free to call witnesses to contradict findings in the report.
While the trial court did consider the investigator's report in
making his findings of fact, the trial court also stated that it
considered all of the evidence admitted during the trial and
observed the parties and witnesses and assessed their
credibility. We must assume that the trial court gave the
investigator's report the appropriate weight in making his
findings of fact. We find that the trial court complied with the
requirements of R.C. 3109.04(C), as well as the related rules
regarding the admission of evidence, and since Rule 18 of the
Marion County Family Court is essentially identical to R.C.
3109.04(C), we find [] that the trial court, likewise, complied
with this rule. Accordingly, we overrule [the appellant's]
second assignment of error.
Id. at ¶ 20.
{¶ 20} We will address more fully the issue of cross-examination in our discussion
of the second assignment of error, but we will note here, that the facts before us are similar
to the facts in Martin in that neither party exercised their right to cross-examine Dr.
Oestreich. Furthermore, as discussed below, our review of the trial court's decision reveals
the trial court did not base its decision entirely on the report of the investigator.
{¶ 21} Therefore, for the reasons articulated above, we do not find the trial court
plainly erred on grounds of hearsay in admitting Dr. Oestreich's report.
{¶ 22} Appellant argues the trial court's admission of Dr. Oestreich's report was not
harmless. We are not persuaded. We observe from our review of the trial court's findings
as stated in the decree that in making its determinations regarding child support the court
considered the affidavit of Lavelle, appellant's testimony, and the report of Dr. Oestreich,
as well as appellant's documents regarding Uber earnings proffered by appellant himself.
Further, with regard to imputed income, the court stated it considered the R.C.
3119.01(C)(17)(a)2 factors and also provided the factors applicable as to its findings;
2R.C. 3119.01(C)(17)(a) provides:
"Potential income" means both of the following for a parent who the court pursuant to a court support order,
or a child support enforcement agency pursuant to an administrative child support order, determines is
voluntarily unemployed or voluntarily underemployed:
No. 20AP-478 8
specifically, (i), (ii), (vi), (ix), (iv), (v), and (xi). Therefore, the trial court did not solely rely
on the report of Dr. Oestreich in imputing income to appellant.
{¶ 23} Accordingly, we overrule appellant's first assignment of error.
C. Second Assignment of Error
{¶ 24} In his second assignment of error, appellant contends the trial court made a
reversable error by admitting Dr. Oestreich's report without providing appellant the
opportunity for cross-examination. Appellant asserts had he cross-examined Dr. Oestreich,
he would have established the doctor's report was founded on faulty assumptions.
{¶ 25} Here again, appellant does not point us to any place in the record where he
objected to the admission of Dr. Oestreich's report on grounds of lack of cross-examination.
In addition, our review of the record3 reveals that appellant did not specifically object to
(a) Imputed income that the court or agency determines the parent would have earned if fully employed as
determined from the following criteria:
(i) The parent's prior employment experience;
(ii) The parent's education;
(iii) The parent's physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the parent resides;
(v) The prevailing wage and salary levels in the geographic area in which the parent resides;
(vi) The parent's special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn the imputed income;
(viii) The age and special needs of the child for whom child support is being calculated under this section;
(ix) The parent's increased earning capacity because of experience;
(x) The parent's decreased earning capacity because of a felony conviction;
(xi) Any other relevant factor.
3 The record reflects appellee's counsel informed the trial court that she planned to call Dr. Oestreich as a
witness, however, he was unavailable that same day and requested appellee call him to testify the following
day at 1:30 p.m. The trial court indicated that would be alright. After appellee testified, appellee's counsel
again reminded the court that appellee intended to call Dr. Oestreich at 1:30 p.m. the following day. The trial
court acknowledged the same stating "[s]o they're still going to have Dr. Oestreich testify." (Tr. Vol. II at 115.)
At this point in time, appellant began his case-in-chief and called himself as a witness on direct examination.
Before appellant completed presenting his case-in-chief, the court recessed for the day. The following day,
although appellant had not completed his case-in-chief, the court called the guardian ad litem as she was
present at that time. Then, appellant resumed presenting his case-in-chief and direct examination of himself.
During his testimony on direct, appellant discussed Lavelle's report. Then, without specifically identifying an
exhibit and without naming Dr. Oestreich, appellant stated he cooperated with an additional vocational
evaluation and "forensic expert results" that was ordered by the court. At this point, appellant testified "I really
wish I would have asked him questions today. But anyway, that's it for this exhibit here." (Tr. Vol. III at 161.)
During appellant's presentation that day, the court instructed him several times to organize his exhibits in
order for them to be easily identifiable and presentable for the court's review. Ultimately, the court determined
it could not proceed with appellant's disorganized presentation of exhibits and gave appellant time to get them
in order. Due to the court's prior commitments and opposing counsel's scheduling conflicts, the court
continued the case to the following week. Appellant continued presentation of his case-in-chief and, after
determining that a witness he had planned to call was not present, informed the court that he had no further
witnesses.
No. 20AP-478 9
appellee not calling Dr. Oestreich for examination, nor did appellant request he be
permitted to cross-examine Dr. Oestreich. Therefore, we will apply a plain error standard
of review to the second assignment of error.
{¶ 26} In support of his second assignment of error, appellant argues: (1) Dr.
Oestreich's report was admitted without proper foundation, (2) Dr. Oestreich was not
qualified to be a vocational evaluator because his education and credentials are suited for
guidance counseling for those with behavioral disabilities, and further that the trial court
failed to establish Dr. Oestreich as a vocational expert and therefore erred in admitting his
report, and (3) Dr. Oestreich's report was founded on faulty assumptions.
{¶ 27} With regard to the first and second arguments that the report did not have a
proper foundation and Dr. Oestreich was not qualified to be an expert, in Citibank, N.A. v.
LaPierre, 10th Dist. No. 13AP-30, 2013-Ohio-3016, ¶ 7, this court held:
In relevant part, App.R. 16 requires that an appellant shall
include in its brief "[a] statement of the assignments of error
presented for review, with reference to the place in the record
where each error is reflected" and "[a] statement of the issues
presented for review, with references to the assignments of
error to which each issue relates." App.R. 16(A)(3) & (4).
Pursuant to App.R. 12(A)(1)(b), appellate courts must
"[d]etermine [an] appeal on its merits on the assignments of
error set forth in the briefs under App.R. 16." "Thus, this court
rules on assignments of error only, and will not address mere
At this point, the trial court confirmed that appellant had rested and immediately stated that it was time for
closing arguments and to address the parties' exhibits. The record here is silent as to whether Dr. Oestreich
was present in the courtroom. Nevertheless, appellant did not object to the court's statement that it was time
to proceed to closing arguments, nor did he request that Dr. Oestreich be called on cross-examination.
Appellee gave her closing argument. Appellant gave his closing argument. After closing arguments were
completed, the court proceeded to consider the admission of appellee and appellant's exhibits. When
appellant moved to admit into evidence the report of Dr. Oestreich, appellant confirmed to the trial court that
although he did not agree with the findings, he agreed that it was the report that he received and participated
in. The court admitted Dr. Oestreich's report and appellant did not object. After admitting several other
documents presented by appellee into evidence, the court turned to consideration of appellant's documents.
The court asked appellant which documents he wished the court to consider. Appellant asked the court to
consider Lavelle's report and then stated: "I am asking for you to decline Dr. Oestreich's report based on the
situation that we are on [sic] now. We're in the middle of [a] pandemic. It is just those reports were based on
good times. This is not a good time." (Tr. Vol. IV at 270.) In response, the trial court stated it would accept all
reports that were ordered by the court and appellant accepted.
Appellant's request that the court decline Dr. Oestreich's report can be construed as an argument the trial
court not accord significant weight to the report of Dr. Oestreich; however, it cannot be construed as an
objection on grounds of lack of cross-examination of Dr. Oestreich. Furthermore, as noted above, the record
does not reflect appellant was prevented from calling Dr. Oestreich to testify.
No. 20AP-478 10
arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-
Ohio-553, ¶ 70.
As these allegations were not raised as assignments of error, the court will not address
appellant's arguments regarding the foundation of Dr. Oestreich's report or the status of
Dr. Oestreich as an expert.
{¶ 28} With regard to the third argument that Dr. Oestreich's report was based on
faulty assumptions, consistent with his arguments to the trial court, appellant argues before
us that the trial court should not have accorded much weight to Dr. Oestreich's report. He
further argues that had he been able to cross-examine Dr. Oestreich, he could have
established the same. However, we do not find the trial court plainly erred on grounds of
lack of cross-examination in admitting Dr. Oestreich's report.
{¶ 29} In addition to not specifically objecting on grounds of lack of cross-
examination in the trial court, appellant did not specifically argue that R.C. 3109.04(C) and
Civ.R. 75(D) were violated. Nor did he make any reference at all to R.C. 3109.04(C) and
Civ.R. 75(D) in his appellate brief. Nevertheless, it is necessary for us to discuss this statute
and rule when considering the argument regarding cross-examination.
{¶ 30} Pursuant to R.C. 3109.04(C):
Prior to trial, the court may cause an investigation to be made
as to the character, family relations, past conduct, earning
ability, and financial worth of each parent and may order the
parents and their minor children to submit to medical,
psychological, and psychiatric examinations. The report of the
investigation and examinations shall be made available to
either parent or the parent's counsel of record not less than five
days before trial, upon written request. The report shall be
signed by the investigator, and the investigator shall be subject
to cross-examination by either parent concerning the contents
of the report. The court may tax as costs all or any part of the
expenses for each investigation.
(Emphasis added.) Further, in relevant part, Civ.R. 75(D) provides:
On the filing of a complaint for divorce, * * * where minor
children are involved, * * * the court may cause an investigation
to be made as to the * * * earning ability, and financial worth
of the parties to the action. The report of the investigation shall
be made available to either party or their counsel of record
upon written request not less than seven days before trial. The
No. 20AP-478 11
report shall be signed by the investigator and the investigator
shall be subject to cross-examination by either party
concerning the contents of the report. The court may tax as
costs all or any part of the expenses for each investigation.
(Emphasis added.)
{¶ 31} This court has held: " 'R.C. 3109.04(C) permits a trial court to appoint an
investigator in a child custody proceeding to conduct "* * * an investigation * * * as to the
character, family relations, past conduct, earning ability, and financial worth of each parent
* * *" and to report to the court on its findings. Where a court requests such an investigation
and report "* * * the investigator shall be subject to cross-examination by either parent
concerning the contents of the report." ' " Smith v. Smith, 10th Dist. No. 98AP-1641
(Dec. 29, 1999), quoting Crosby v. Crosby, 10th Dist. No. 92AP-1455 (June 15, 1993). In
Smith and Crosby, the court-appointed investigator was a guardian ad litem. The guardian
ad litem in both Smith and Crosby conducted investigations, which included interviewing
the parties and some witnesses, preparing reports based on their investigations, and
appearing at trial. In neither case was the guardian ad litem cross-examined.
{¶ 32} Following closing arguments in Crosby, the court requested the guardian ad
litem report her observations regarding the parties to the court and make a
recommendation based on these observations as to the custody arrangement which would
be in the minor child's best interest. Crosby. On appeal, this court held "[u]nder the
circumstances, the trial court should have provided the parties an opportunity to cross-
examine the guardian ad litem under oath concerning the contents of her reports." Id.,citing R.C. 3109.04(C). However, this court went on to hold "because defendant's counsel
neither objected to the court's failure to permit cross-examination of the guardian ad litem,
nor raised the issue in any manner at trial, defendant has waived any error unless it rises to
the level of plain error." Id., citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209
(1982). This court reasoned the report of the guardian ad litem did not contain any evidence
that was not otherwise presented at trial and, further, the independent analysis and
consideration by the trial court indicates the determination of custody would not have been
different had the testimony of the guardian ad litem been excluded or if the guardian ad
litem had been subject to cross-examination. Id.No. 20AP-478 12
{¶ 33} In Smith, the guardian ad litem's report was submitted after the conclusion
of trial with recommendations as to custody. Smith. At trial, counsel for the plaintiff
requested to cross-examine the guardian ad litem and the trial court refused; reasoning that
the guardian ad litem was acting as both guardian and attorney for the child. Id. Citing
generally to this court's opinion in Crosby and the language of R.C. 3109.04(C), this court
held the trial court should have allowed counsel to cross-examine the guardian ad litem,
but that the record did not disclose prejudice to the plaintiff. Smith. This court explained
the report of the guardian ad litem was only one of several factors considered by the trial
court in reaching its decision. Id. This court further reasoned: "Given that the trial court
also gave counsel an opportunity to submit closing arguments which included objections to
the guardian's report, we cannot find prejudice on this record in the trial court's refusal to
permit cross-examination of the guardian ad litem." Id., citing Shoff v. Shoff, 10th Dist. No.
97APF10-1377 (June 30, 1998).
{¶ 34} On review of the record in the case before us, we do not find the trial court
relied solely on the information contained in Dr. Oestreich's report to impute income to
appellant for purposes of child support. Significantly, the trial court also considered the
statutory factors, pursuant to R.C. 3119.01(C)(17)(a), requiring a weighing of the evidence
and testimony by the trier of fact in determining appellant's imputed income.
{¶ 35} In addition, Dr. Oestreich's report was provided to the parties on March 27,
2020, while the first day of testimony of the parties was on June 23, 2020. Appellant does
not assert that he did not receive the report less than seven days from trial. See Civ.R.
75(D); see also R.C. 3109.04(C). The record reflects appellant subpoenaed witnesses to
testify at trial, however, Dr. Oestreich was not one of them. Appellant argues that his
position would have been bolstered by his ability to cross-examine Dr. Oestreich; however,
the record reflects appellant raised all issues with Dr. Oestreich's report while testifying on
direct.
{¶ 36} With all this in mind, we cannot find the trial court plainly erred in admitting
Dr. Oestreich's report. Furthermore, even if we were to find error, it was harmless.
{¶ 37} In support of his argument that Dr. Oestreich's report was premised on faulty
assumptions, appellant points to his own testimony and evidence he presented that: (1) he
was struggling financially, (2) he was working 12 hours a day as an Uber driver, (3) he had
No. 20AP-478 13
an average income over the preceding 3 years of $11,322 per Lavelle, (4) his ability to do
"sales-man face to face" outside sales was impaired during the pandemic, and (5) his ability
to look for higher paying jobs was not good because of the pandemic. (Appellant's Brief at
20.) Ultimately, appellant contends Dr. Oestreich's findings were based on unrealistic
assumptions in a pandemic environment.
{¶ 38} The decree reveals the trial court carefully considered and weighed evidence
regarding appellant's employment with Uber. The court considered appellant's evidence
regarding his Uber earnings, including earnings in May 2020 reflecting that he netted
$6,699.15. The court also considered appellant's expenses related to his Uber driving. The
court agreed with appellant that working 72-84 hours per week is unrealistic.
{¶ 39} The decree also reveals the trial court carefully considered and weighed
Lavelle's report. The court noted Lavelle stated he did not find evidence of significant
unreported cash transactions, but also noted Lavelle stated appellant does not maintain
contemporaneous detailed accounting records of his African antique business which
involves cash transactions at art shows. The court further observed that Lavelle gave the
caveat that appellant's $11,322 per year income estimate did not include a valuation of
imputed income, noting that Lavelle specifically stated he would not be responsible to make
such a determination, and further he was not trained to be an employment evaluator.
{¶ 40} The trial court also considered other evidence, including evidence that
appellant is "highly educated, highly skilled and, by his own admission, capable of earning
6 figures per year."4 (Emphasis sic.) (Decree at 17.)
{¶ 41} Review of the record supports the trial court's reliance on the same evidence
Dr. Oestreich discussed in his report which is reflected in the decree. Appellant testified he
has been selling African art for 18 years to people, museums, galleries, and collectors
around the country and asserts his experience is in selling objects. In evaluating the income
generated from appellant's art sales, Dr. Oestreich's report states "[i]n most years, he
averaged more closely to $50,000 per year selling African artwork." (Report at 3.) The
court noted that selling African antiques was not the only retail sales opportunity available
to appellant.
4Appellant testified in October 2018 he secured a job earning a "[q]uarter-million-dollar income." (Tr. Vol.
IV at 230, 232.) (See also Report at 4.)
No. 20AP-478 14
{¶ 42} Appellant also testified that in October 2018 he was hired by a company
called KTM, located in Florida, that sent him to Sierra Leone, for which he was to earn a
quarter million-dollar salary. Dr. Oestreich references this employment in his report
stating appellant secured a job as a diamond evaluation specialist as evidenced by a
memorandum of understanding given to Dr. Oestreich from KT Diamond Partners dated
October 7, 2018 that would have paid appellant well into six figures. Appellant testified,
and Dr. Oestreich reported, contact by third parties to appellant's employer resulted in his
termination from KT Diamond Partners.
{¶ 43} Finally, Dr. Oestreich opined that appellant's capacity to earn $35,000
annually as an Uber driver and as a sales representative he is expected to start at $50,000
per year with a better upside for the future. Pursuant to the trial court's consideration of
the R.C. 3119.01(C)(17)(a) factors, and in accord with the evidence presented by appellant
regarding his current Uber earnings and the entirety of Dr. Oestreich's report, the court
found appellant's income for purposes of child support is $50,000 per annum.
{¶ 44} Based on the foregoing, we cannot find Dr. Oestreich's report was founded on
faulty assumptions.
{¶ 45} Accordingly, we overrule appellant's second assignment of error.
IV. Conclusion
{¶ 46} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.