In re T.D.J. , 2014 Ohio 5684 ( 2014 )

[Cite as In re T.D.J., 2014-Ohio-5684.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100972
IN RE: T.D.J., III
A Minor Child
[Appeal By S.M.J., Mother]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU-09113269
BEFORE: Celebrezze, J., Boyle, A.J., and Keough, J.
RELEASED AND JOURNALIZED: December 24, 2014
FOR APPELLANT MOTHER
S.M.J., pro se
P.O. Box 32706
Euclid, Ohio 44132
FOR APPELLEE FATHER
T.J., Jr., pro se
2982 E. 59th Street
Cleveland, Ohio 44127
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant-mother, S.M.J. (“mother”), appeals from the denial of her motion to
modify custody and the grant of a motion to modify custody filed by appellee-father, T.J., Jr.
(“father”), giving him legal custody of their minor child. Mother assigns three errors related to
that decision and the denial of other motions. After a thorough review of the record and law,
we reverse for a new hearing.
I. Factual and Procedural History
{¶2} Mother and father entered into a shared parenting agreement in 2009. However,
problems arose between the parents that resulted in a number of reports of abuse and neglect to
Cuyahoga County Department of Children and Family Services (“CCDCFS”), the police, and
others. The investigations that resulted all ended with findings that the allegations were
unsubstantiated. Prior to August 17, 2012, the parties had filed numerous motions, but in a
tense hearing on that date, the trial judge dismissed all motions except two for failure to
prosecute by failing to abide by court orders. The court indicated a long history of fighting
between mother and father with little concern for the best interest of the child. This court
reversed the dismissals of father’s motions for failure to properly inform the parties that failure to
comply would result in dismissal. In re T.D.J., III, 8th Dist. Cuyahoga No. 98963,
2013-Ohio-1454.
{¶3} From March 30, 2012, to the October 28, 2013 trial date, the parties filed more than
31 motions with the court seeking sanctions, modification of custody, emergency custody, to
show cause, and a myriad of other things. The trial court held a two-day hearing on these
motions and those subject to this court’s reversal, which began on October 28, 2013. The trial
court issued a ten-page opinion on December 31, 2013, disposing of the motions. The trial
court dismissed the motions of both mother and father that sought sanctions and to declare either
party a vexatious litigator because the declaration of a party as a vexatious litigator could not
come by motion in the present litigation. The trial court also ruled on several motions together
that sought some type of change of custody and determined a modification of custody was
necessary due to changes in circumstances and was in the child’s best interest. It made father
the sole custodial parent and modified mother’s visitation from every other week to every other
weekend. The court also imposed several conditions for visitation including that mother refrain
from interfering with the child’s education and therapy, which the court found she had done prior
to trial.1
{¶4} Mother appeals from the court’s decision, assigning three errors for review:
I. The trial court abused its discretion by granting [an] oral motion during trial
dismissing all of appellant’s witnesses violating Judicial Code 2.6.
II. The trial court abused its discretion in granting appellee sole custody when
the weight of the evidence shows change of circumstance with child and appellee
violating R.C. 3109.04(E)(1)(a).
III. The trial court abused its discretion dismissing with prejudice appellant’s
motions violating Ohio Judicial Code 2.15.
II. Law and Analysis
A. Exclusion of Witnesses
{¶5} Mother first argues that the trial court erred in excluding her from calling any
witnesses other than herself. Although she couches this assigned error in terms of violating a
cannon of judicial ethics, this court interprets this argument as alleging that the trial court abused
its discretion in granting father’s motion to exclude these witnesses.
{¶6} Because this court has no authority to enforce the code of judicial conduct, we
cannot address the other aspect of mother’s assigned error and her third assignment of error.
1
The principal of the school the child was attending testified as to mother’s behavior and the child’s
absences that resulted in his expulsion from preschool.
That is exclusively the province of the Ohio Supreme Court. Mother has already filed affidavits
of disqualification related to the trial judge and grievances against appellant’s former attorney.
She has properly availed herself of the available remedy.2
{¶7} At the commencement of trial, father moved to preclude mother from calling any
witnesses other than herself. Father stated that he had not been served with any notices of
subpoena as required by Civ.R. 45(A)(3) and did not have an opportunity to object to the
subpoenas. Mother had subpoenaed more than 22 witnesses, and eight were present that day to
testify. Mother admitted that she failed to serve notice on father, but blamed the clerk’s office
for the failure. She admitted that she did not have any certificates of service and that she did
not provide notices to father regarding the subpoenas. However, father had been provided a
witness list that included all the subpoenaed witnesses. The trial court granted father’s motion
to exclude those subpoenaed witnesses for which no notice of subpoena was received.
{¶8} Civ.R. 45(A)(3) provides:
A party on whose behalf a subpoena is issued under division (A)(1)(b)(ii), (iii),
(iv), (v), or (vi) of this rule shall serve prompt written notice, including a copy of
the subpoena, on all other parties as provided in Civ.R. 5. If the issuing attorney
modifies a subpoena issued under division (A)(1)(b)(ii), (iii), (iv), (v), or (vi) of
this rule in any way, the issuing attorney shall give prompt written notice of the
modification, including a copy of the subpoena as modified, to all other parties.
The Staff Notes accompanying the 2005 amendment to the rule state:
The notice requirement of amended Civ.R. 45(A)(3), like its counterpart in
Rule 45(b)(1), Federal Rules of Civil Procedure, is intended “to afford other
parties an opportunity to object to the production or inspection, or to serve a
2
Mother’s affidavit of disqualification was denied by the Ohio Supreme Court on October 19, 2012.
demand for additional documents or things.” Advisory Committee’s Note to 1991
Amendments to the Federal Rules of Civil Procedure; see, e.g., Spencer v.
Steinman, 179 F.R.D. 484, 488 (E.D.Pa. 1998).
No penalty is prescribed for a party’s violation of the notice requirement. Schultz v. Mayfield
Neurological Inst., 1st Dist. Hamilton No. C-120764, 2013-Ohio-4146, ¶ 21.
{¶9} A reading of Civ.R. 45(A)(1)(b) indicates that Civ.R. 45(A)(3)’s notice requirement
was applied in error to the present case. Civ.R. 45(A)(1)(b)(i), which is not included in the
notice requirement provision, “command[s] each person to whom it is directed * * * to * * *
attend and give testimony at a trial or hearing at any place within this state[.]” The types of
subpoenas that are included in the notice requirement are for production, inspection, copying, or
testing of documents, records, or tangible items at any deposition, trial or hearing; or for entry
onto lands. Civ.R. 45(A)(1)(b)(ii)-(vi). It appears that several witnesses, including a
representative of the hospital in possession of the child’s medical records and representatives
from the organizations that provided psychological services to the child, were subpoenaed with
instructions to bring records and would qualify for the notice provision above. However,
several others were simply subpoenaed to appear to testify.
{¶10} Civ.R. 45(A)(3) does not require mother to serve notice of subpoenas to father for
the witnesses appearing only to testify at trial. Cauwenbergh v. Cauwenbergh, 11th Dist.
Ashtabula No. 2006-A-0008, 2007-Ohio-1070, ¶ 61. Therefore, the trial court erred in granting
father’s motion to exclude all of mother’s witnesses at trial. This was obviously prejudicial
because it precluded mother from introducing any testimony except her own.3
3
The trial court classified this as a ruling on a motion in limine, but also instructed mother to send her
witnesses home. Mother raised the subject again during trial, but the court instructed her that it had already ruled,
and she was precluded from calling witnesses. Therefore, mother has appropriately preserved her objection to this
ruling.
{¶11} Many of the issues raised by mother at the hearing were not relevant to the ultimate
determination of whether there was a change in circumstances that would dictate a modification
in custody based on the best interest of the child, but we cannot say that exclusion of properly
subpoenaed witnesses was harmless error. Therefore, the trial court’s decision granting father’s
motion was error, and the case must be remanded for a new trial on the motions affected by this
error.
{¶12} Mother’s first assignment of error is sustained. This renders her second
assignment of error moot.
III. Conclusion
{¶13} The trial court erred in precluding mother from calling witnesses at trial. Mother
was not required to send notice of subpoenas to father pursuant to Civ.R. 45(A)(3) for witnesses
who were simply appearing to testify. A new trial must be conducted on the motions affected
by this error. This includes motions the trial court denied due to mother’s failure to produce
evidence that would be impacted by the above decision and especially the motions seeking a
change in custody. Specifically, mother’s September 10, 2012 motion to strike all of father’s
pleadings based on fraud on the court; mother’s four motions for contempt filed October 29,
2012, March 28, 2013, March 28, 2013, and April 3, 2013; father’s show cause motions filed
June 17, 2013, and September 23, 2013; father’s motions related to visitation filed March 30,
2012, and July 16, 2012; mother’s motions for temporary custody filed on September 7, 2012,
and March 28, 2013; mother’s motions to modify custody and exchange location filed March 29,
2013; and mother’s motion to cease and desist from allowing certain persons to act as care
givers, filed May 29, 2013.
{¶14} This cause is reversed and remanded to the lower court for further proceedings
consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court, juvenile division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR