Inscoe v. Inscoe
| Decision Date | 16 June 1997 |
| Docket Number | No. 95,95 |
| Citation | 121 Ohio App.3d 396,700 N.E.2d 70 |
| Parties | INSCOE, Appellant, v. INSCOE, Appellee. CA 12. |
| Court | Ohio Court of Appeals |
Lambda Legal Defense and Education Fund, Inc., and Patricia M. Logue, Chicago, IL, for appellant. 1
Christopher E. Tenoglia, Pomeroy, Pomeroy, for appellee.
Rita S. Fuchsman, Chillicothe, for amici curiae. 2
This is an appeal from a Meigs County Common Pleas Court judgment granting a motion for modification of parental rights and responsibilities concerning the parties' child from Herbert E. Inscoe, plaintiff below and appellant herein, to Bonnie L. Inscoe, defendant below and appellee herein.
Appellant assigns the following errors:
First Assignment of Error:
"The trial court abused its discretion when it found changed circumstances to warrant considering a modification of custody."
Second Assignment of Error:
"The trial court abused its discretion by disallowing testimony from former judge Charles Knight relating to the issue of changed circumstances."
Third Assignment of Error:
"The trial court abused its discretion by ordering a modification of custody."
Fourth Assignment of Error:
"The trial court abused its discretion by modifying custody based on a finding that appellant's sexual orientation or 'openly gay life-style' had adversely affected his son."
Fifth Assignment of Error:
"The trial court abused its discretion by entering a post-hearing psychological report into evidence, under seal, without allowing cross-examination of its author."
Sixth Assignment of Error:
"The trial court abused its discretion in its conduct of an interview of the minor child and in sealing the interview from the parties."
Seventh Assignment of Error:
"The trial court abused its discretion and erred as a matter of law in setting appellant's wages at $50,000 for child support purposes, without evidence or documentation."
The parties married in 1983 and have one child born in 1984. On July 5, 1988, appellant filed a complaint for divorce. On October 31, 1988, the trial court granted appellant a divorce and awarded him custody of the child.
The parties filed two motions in the fall of 1993. On October 15, 1993, appellant filed a motion to establish child support. In the motion, appellant noted that although the trial court awarded him custody of the child in 1988, the trial court did not issue a child support order at that time. On November 12, 1993, appellee filed a motion for an order granting her visitation with the child every weekend, during the summer months, and every holiday.
On December 16, 1993, the trial court held a hearing on the two motions. The record transmitted on appeal does not include a transcript of that hearing. On January 11, 1994, the trial court filed an agreed entry granting appellee visitation with the child for three weekends a month and during the summer months and denying appellant's motion for child support.
On December 28, 1994, appellee filed a motion for contempt and for modification of parental rights and responsibilities. In the motion, appellee explained that appellant had denied appellee the right to exercise visitation with the child on several occasions. Appellee also alleged that "the current living conditions to which said child is being subjected are not in the best interest of the child." In an affidavit attached to the motion, appellee explained that appellant has not permitted her to have overnight visitation with the child since November 6, 1994, and allowed her to see the child for only one hour on each of four dates--November 22, December 4, December 9, and December 11.
On January 25, 1995, appellant filed a pro se motion requesting the trial court to, inter alia, (1) transfer the case to the Cabell County Common Pleas Court in Huntington, West Virginia, (2) modify the visitation order to enable the child to participate in sports and extracurricular activities, (3) modify the visitation order to require appellee herself to supervise all visitations, (4) hold appellee in contempt for "harassing and slandering" appellant, (5) grant an order of child support, and (6) order a home investigation of both parties.
On February 3, 1995, the trial court ordered Jeanie Weeks of the Meigs County Department of Human Services to conduct home investigations of both parties and ordered appellant to take the child to Shawnee Mental Health for a psychological examination and/or testing.
On March 30, 1995, the trial court held a hearing on appellee's December 28, 1994 motion and appellant's January 25, 1995 motion. At the beginning of the hearing, appellant requested the court to conduct an in camera interview of the child. In response to appellant's request, the court stated:
Immediately after making the above comment, the trial court noted that appellant had called former Meigs County Common Pleas Court Judge Charles Knight to testify that at the time he issued the January 11, 1994 agreed visitation order, he was aware of appellant's sexual preference. When appellee's counsel declined to stipulate to Knight's expected testimony, the court indicated that the court would call Knight as a witness. During Knight's testimony, however, appellee objected to the following question posed by the court:
"At the time you heard this case, did you have any knowledge of the sexual preference of the Plaintiff, Herbert Eugene Inscoe?"
Appellee argued that the record should speak for itself. Appellee further argued that "the witnesses certainly have the opportunity themselves to say what was disclosed" to the trial court prior to the January 11, 1994 visitation order. The trial court agreed with appellee and sustained the objection to its own question.
Appellee called appellant to testify on cross-examination. Appellant testified that (1) Charles Hatfield is his companion, (2) Hatfield is technically the owner of the pet store where they both work, (3) Hatfield can do anything he wants to do with the pet store, (4) appellant's parents gave the pet store to appellant and Hatfield, (5) appellant and Hatfield are a family, (6) the pet store is their family business, (7) appellant is an employee at the pet store, and (8) "what is mine is Charles' and what is Charles' is mine."
Chesapeake School District counselor Danny O. Newman II testified that he counseled the child at least ten times. Newman further testified that the child initiated all but the first counseling session. When Newman began to discuss the content of the counseling sessions, appellant raised an objection on the ground that the sessions constitute privileged communications between Newman and the child. To resolve the privilege issue, the trial court interviewed the child in the courtroom with no one except the court reporter present. During the interview, the child indicated to the court that he did not want Newman to reveal the content of the counseling sessions. The child told the court, "I don't want you talking to him."
During the interview, the trial court also seized the opportunity to question the child as follows regarding his wishes and concerns with respect to the allocation of parental rights and responsibilities:
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