[Cite as Buckmaster v. Buckmaster,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

JASON BUCKMASTER, : : First Petitioner-Appellant, : Case No. 13CA13 : vs. : : DECISION AND JUDGMENT MARIA BUCKMASTER, : ENTRY : Second Petitioner-Appellee. : Released: 02/24/14 _____________________________________________________________ APPEARANCES:

John W. Judkins, Greenfield, Ohio, for Appellant.

Jon C. Hapner, Hillsboro, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Appellant, Jason Buckmaster, appeals the decision of the trial

court denying his motion to terminate spousal support, which he filed based

upon his claim that Maria Buckmaster, Appellee, was cohabitating with a

male, over the age of eighteen. On appeal, Appellant raises six assignments

of error as follows: 1) Appellant was denied due process of law due to the

court’s failure to publish notice of its policy regarding children’s testimony

in its local rules; 2) the trial court’s enforcement of an unpublished local rule

undermines the public’s confidence in our courts and is against public

policy; 3) the court’s adoption of a per se rule proscribing children from Highland App. No. 13CA13 2

testifying in matters involving their parents violates his right to due process

of law; 4) Appellant’s proffer regarding the child’s testimony was

unnecessary but sufficient to inform the court of the substance of the

testimony; 5) the exclusion of the child’s testimony was not harmless error;

and 6) the finding that Appellee did not cohabitate with another male over

the age of 18 was against the manifest weight of the evidence.

{¶2} As discussed more fully below, we find merit to Appellant’s

first through fifth assignments of error and as such, they are sustained. In

light of our disposition of these assignments of error, we do not reach the

merits of Appellant’s sixth assignment of error which poses a manifest

weight of the evidence argument. Accordingly, the decision of the trial

court is reversed and this matter is remanded for further proceedings

consistent with this opinion.

FACTS

{¶3} The parties filed a joint petition for dissolution of marriage on

September 9, 2010, and a final dissolution decree and decree of shared

parenting was issued on October 29, 2010. Apparently due to an alleged

incident that occurred between Appellee’s boyfriend, Albert Eastman, and

the parties’ three children, Appellant filed a motion to terminate the shared

parenting plan and an ex parte motion for custody on July 31, 2012. The Highland App. No. 13CA13 3

trial court issued an ex parte order the same day designating Appellant as the

temporary residential custodian of the minor children. Appellant followed

with the filing of a motion to modify child support, and then a motion to

terminate spousal support on August 7, 2012, which motion is at issue

herein.

{¶4} The trial court issued an entry September 24, 2012, terminating

the shared parenting plan and child support order, and naming Appellant as

the permanent residential custodian of the parties three minor children. A

hearing on the issue of spousal support was subsequently held on October

23, 2012. Both parties testified at the hearing, however, when Appellant

sought to have their sixteen year old son testify, the trial court refused to

allow the child to testify, citing an allegedly well known and long

established court “policy” that does not permit children to testify in domestic

relations matters. In light of ruling, Appellant made a proffer to the court

regarding what the child’s testimony would have been.

{¶5} On November 8, 2012, a magistrate’s decision was issued

finding there was no cohabitation and overruling Appellant’s motion to

terminate spousal support. Appellant followed with a request for findings of

facts and conclusions of law on November 15, 2012, and then filed

objections to the magistrate’s decision on January 31, 2013. Finally, on May Highland App. No. 13CA13 4

8, 2013, the trial court issued a decision and final judgment entry overruling

Appellant’s objections. It is from this final entry that Appellant now brings

his timely appeal, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

“I. APPELLANT WAS DENIED DUE PROCESS OF LAW DUE TO THE COURT’S FAILURE TO PUBLISH NOTICE OF ITS POLICY REGARDING CHILDREN’S TESTIMONY IN ITS LOCAL RULES.

II. THE TRIAL COURT’S ENFORCEMENT OF AN UNPUBLISHED LOCAL RULE UNDERMINES THE PUBLIC’S CONFIDENCE IN OUR COURTS AND IS AGAINST PUBLIC POLICY.

III. THE COURT’S ADOPTION OF A PER SE RULE PROSCRIBING CHILDREN FROM TESTIFYING IN MATTERS INVOLVING THEIR PARENTS VIOLATES APPELLANT’S RIGHT TO DUE PROCESS OF LAW AND THE RULES OF EVIDENCE.

IV. APPELLANT’S PROFFER REGARDING THE CHILD’S TESTIMONY WAS UNNECESSARY BUT SUFFICIENT TO INFORM THE COURT OF THE SUBSTANCE OF THE TESTIMONY.

V. THE EXCLUSION OF THE CHILD’S TESTIMONY WAS NOT HARMLESS ERROR.

VI. THE FINDING THAT APPELLEE DID NOT COHABITATE WITH ANOTHER MALE OVER THE AGE OF 18 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

ASSIGNMENTS OF ERROR I, II AND III

{¶6} As Appellant’s first three assignments of error are interrelated,

we will address them in conjunction with one another. Each of these three Highland App. No. 13CA13 5

assignments of error essentially challenges the trial court’s adoption and

enforcement of an unwritten local rule which precludes minor children from

testifying in domestic relations matters, claiming such action was in

violation of public policy and deprived Appellant of due process. Appellee’s

counsel and the trial court have both conceded that the oral rule at issue was

never made a part of the written, local rules of the court. As Appellant’s

arguments raise constitutional questions and public policy concerns, they are

questions of law, which we review de novo, without deference to the

decision of the trial court.

{¶7} The trial court, in its entry, referenced that it had been the policy

of the court for many years not to permit minor children to testify, citing

concerns of parental alienation and emotional abuse. Appellant,

nonetheless, claims not to have had notice of this unwritten rule, and argues

on appeal that had he known he would have taken other steps to prepare for

trial. Appellant’s argument goes a step further, however, by challenging the

validity of the rule in general, citing due process concerns regarding the lack

of notice, and the conflict between such a rule and rules of evidence.

{¶8} Rule 5 of the Rules of Superintendence governs the adoption of

local rules and provides in section (A)(2) as follows: Highland App. No. 13CA13 6

“A local rule of practice shall be adopted only after the court or

division provides appropriate notice of an opportunity to

comment on the proposed rule. If the court or division

determines that there is an immediate need for the rule, the

court or division may adopt the rule without prior notice and

opportunity for comment, but promptly shall afford notice and

opportunity for comment.”

The rule further provides in section (A)(3) that “[u]pon adoption, the court

or division shall file a local rule of practice with its clerk and the clerk of the

Supreme Court.” Finally, the rule provides in section (A)(1) that “[l]ocal

rules of practice shall not be inconsistent with rules promulgated by the

Supreme Court.” Thus, the Rules of Superintendence clearly call for notice

to be given with respect to the adoption of any and all local rules.

{¶9} We are mindful, however, of the weight to be afforded the Rules

of Superintendence. The “Rules of Superintendence are designed (1) to

expedite the disposition of both criminal and civil cases in the trial courts of

this state, while at the same time safeguarding the inalienable rights of

litigants to the just processing of their causes; and (2) to serve that public

interest which mandates the prompt disposition of all cases before the

courts.” State v. Singer,

,

Highland App. No. 13CA13 7

(1977). Courts have interpreted the Rules of Superintendence as general

guidelines for the conduct of the courts that do not create substantive rights.

(stating that the Rules of Superintendence are not meant “to alter

basic substantive rights”); see, also, In re K.G., 9th Dist. Wayne No.

10CA16,

, ¶ 11; Allen v. Allen, 11th Dist. Trumbull No.

2009-T-0070,

, ¶ 31; Sultaana v. Giant Eagle, 8th Dist.

Cuyahoga No. 90294,

. “They are not the equivalent

of rules of procedure and have no force equivalent to a statute. They are

purely internal housekeeping rules which are of concern to the judges of the

several courts but create no rights in individual defendants.” State v. Gettys,

,

(1976). Thus, we cannot

conclude that the trial court’s failure to abide by the Rules of

Superintendence deprived Appellant of his rights to due process, as they

create no rights in general.

{¶10} However, Civil Rule 83 governs “Rule of court,” which deals

with the adoption of local rules and largely mirrors the language in Sup.R. 5.

Civ.R. 83 provides as follows:

“(A) A court may adopt local rules of practice which shall not

be inconsistent with these rules or with other rules promulgated Highland App. No. 13CA13 8

by the Supreme Court and shall file its local rules of practice

with the Clerk of the Supreme Court.

(B) Local rules of practice shall be adopted only after the

court gives appropriate notice and an opportunity for comment.

If a court determines that there is an immediate need for a rule,

it may adopt the rule without prior notice and opportunity for

comment, but promptly shall afford notice and opportunity for

comment.”

Thus, Sup. R. 5 and Civ.R. 83, read separately and together, clearly permit

courts to adopt local rules, provided that appropriate notice and opportunity

for comment is given, and that the rules are not inconsistent with other rules

promulgated by the Supreme Court.

{¶11} A review of the record indicates that the rule at issue, which is

essentially a blanket rule disallowing the testimony of minor children in

domestic relations matters, was an unwritten rule. Thus, it was not

published and notice and an opportunity for comment could not have been

given. Opposing counsel does not dispute this, but instead states that “[a]

good lawyer knows the law, but a great lawyer knows the judge.” We view

this adage to be a weak argument and a poor substitute for judicially

required notice of the local rules. And, we are a government of laws and not Highland App. No. 13CA13 9

of men and women. Accordingly, we find the trial court’s reliance and

enforcement of such a rule to be in error.

{¶12} The Seventh District Court of Appeals was faced with a similar

situation in In re Estate of Traylor, et al., 7th Dist. Mahoning Nos. 03MA253

- 03MA259, 03MA262,

. In Traylor, the court held that a

probate court could not retroactively impose sanctions based upon local

rules of court, in part because the rule was not effective yet, and in part

because another rule upon which part of the sanction was based was an

unwritten rule of the court dealing with deposit of settlement funds. Id. at ¶

18. In reaching its decision, the Traylor court noted that the probate court’s

actions were “complicated by the fact that there is no provision in the Rules

of Superintendence for purely oral local rules.” The court reasoned that if

the rules are required to be filed with the Supreme Court, “they must be

written.” Id. at ¶ 19; See, also In re Estate of Usiak,

,

,

. We agree.

{¶13} Our analysis, however, does not end here. Aside from failing

to provide notice of the rule as required by Civ.R. 83 and recommended by

Sup.R. 5, this unwritten local rule appears to be in conflict with “other rules

promulgated by the Supreme Court,” namely, the Rules of Evidence.

Evid.R. 601(A) states that every person is competent to be a witness except Highland App. No. 13CA13 10

children who are under the age of ten and “appear incapable of receiving just

impressions of the facts and transactions respecting which they are

examined, or of relating them truly.” A blanket rule disallowing children of

any age to testify in domestic relations matters is inconsistent with Evid.R.

601.

{¶14} As set forth above, the testimony that was excluded herein was

that of the sixteen year old son of the parties. This was not a situation that

involved a child of tender years which first required a competency

determination. Rather, pursuant to Evid.R. 601, the child should have been

presumed competent to testify. In fact, the trial court’s exclusion of the

child’s testimony does not appear to have been based upon competency

issues, but rather based upon the private views of the court and public policy

concerns that, as already discussed, were not even part of the court’s written

local rules.

{¶15} Although it is a question of first impression in our district,

other districts have considered and rejected such court policies. For

example, the Third District Court of Appeals was confronted with this issue

in Brandt v Brandt, 3rd Dist. Auglaize No. 2-05-30,

. The

issue in Brandt involved a situation where the trial court refused to make a

competency determination of a nine year old child. Id. at ¶ 10. Instead the Highland App. No. 13CA13 11

trial court simply determined that it would not allow the child to testify. Id.

On appeal, the court noted the trial court’s reliance on public policy

concerns as well as its own private views in excluding the child’s testimony,

ultimately determining that the refusal to allow the testimony was

unjustified. Id. at ¶ 11. In reaching its decision, the Brandt court relied

upon Moser v. Moser,

,

(1991), which

interestingly, the trial court herein also relied upon in reaching its decision.

{¶16} In Moser, the Third District was confronted with a situation

where a trial court refused to allow the parties’ seventeen and half year old

minor child to testify in a domestic relations matter.

. The trial

court’s refusal was based upon public policy concerns as well, specifically

the concern that to allow the child to testify would create an undue burden

on the child and possibly create a rift that would never heal.

Acknowledging and sympathizing with such concerns, the appellate court

nonetheless concluded that the trial court committed error in refusing to

permit the child to testify.

As will be discussed more fully infra,

however, the court did not reverse the decision based upon other reasons.

{¶17} Based upon the foregoing reasoning, we conclude that the trial

court erred in adopting and enforcing a purely oral, unwritten, local rule of

court which is contrary to both Sup.R. 5 and Civ.R. 83 with respect to its Highland App. No. 13CA13 12

failure to provide notice as well as its inconsistency with other rules

promulgated by the Supreme Court, namely, Evid.R. 601. In reaching our

decision, we are mindful of the holding in Glimcher v. Glimcher,

,

(1971), which was relied upon by the trial court

below in reaching its decision as was also cited by the cases discussed

above. In Glimcher, the court was reviewing a decision of a trial court that

had permitted the parties’ minor children to testify in a domestic matter. In

discussing the lengthy record, the court noted the children’s testimony and

stated that “[w]e do not condone the practice of a parent causing minor

children to testify against the other parent in a divorce action.”

.

{¶18} While we share the concerns of the Glimcher court, as well as

the trial court below, our concerns cannot and should not take precedence

over the rules of evidence. Further, as noted in Moser, “[a]s undesirable as

the practice may be, courts have traditionally permitted children of the

parties to a divorce to testify in the hearing thereon.”

. As

such, we sustain Appellant’s first, second and third assignments of error to

the extent that they assert a technical error in the trial court’s reliance upon

an unwritten local rule, as well the court’s enforcement of a blanket rule

disallowing child testimony in domestic matters. We further find that this

error did, in fact, result in a deprivation of due process on the part of Highland App. No. 13CA13 13

Appellant with respect to his right to notice of the rules of court. However,

whether Appellant was prejudiced, the extent to which he was prejudiced, as

well as whether the errors of the trial court constitute reversible error will be

discussed as part of our analysis of Appellant fourth and fifth assignments of

error.

ASSIGNMENTS OF ERROR IV AND V

{¶19} As the analysis of these assignments of error is intertwined, we

address them in conjunction with one another. In his fourth assignment of

error, Appellant contends that his proffer regarding the child’s testimony

was unnecessary but sufficient to inform the court of the substance of the

testimony. In his fifth assignment of error, Appellant contends that the

exclusion of the child’s testimony was not harmless error. As already

discussed, we have determined that the trial court erred in the adoption and

enforcement of rule at issue, however, “ ‘in order for a reviewing court to

reverse an evidentiary ruling of the trial court, an appellant must

affirmatively demonstrate through the record on appeal not only that error

was committed, in the technical sense, but also that such error was

prejudicial to appellant, except in rare circumstances where the error is so

substantial that prejudice will be presumed.’ ” Moser v.

at Highland App. No. 13CA13 14

579; citing 5 Ohio Jurisprudence 3d (1978), 115, Appellate Review, Section

555.

{¶20} The trial court attempted to preemptively address these

potential arguments in its decision by stating that even if the court policy

preventing children from testifying was incorrect, Appellant’s proffer of the

child’s testimony was insufficient to allow a reviewing court to determine

what, if any, impact the testimony would have had on the outcome of the

proceeding and thus, its exclusion of the testimony was harmless error. The

trial court cited the reasoning of Moser v.

in support of its

decision. Appellee’s argument on appeal follows this line of thought,

arguing that “the proffer said the boy would testify but not what he would

say.” Appellant, on the contrary, contends that a proffer was unnecessary

but that his proffer was adequate.

{¶21} We begin by noting that “[t]he decision to admit or exclude

evidence rests within the trial court's sound discretion.” State v. Munion, 4th

Dist. Scioto No. 12CA3520,

; citing State v. Tyler, 4th Dist.

Ross No. 10CA3183,

; citing State v. McGuire,

,

(1997). As such, a reviewing

court will not reverse the trial court's decision absent an abuse of discretion.

State v. Apanovitch,

,

(1987). The term Highland App. No. 13CA13 15

“abuse of discretion” implies that the court's attitude is unreasonable,

unconscionable, or arbitrary. State v. Adams,

,

(1980). Furthermore, “ ‘[w]hen applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its

judgment for that of the trial court.’ ” State v. Munion at ¶ 14; quoting In re

Jane Doe 1,

,

(1991).

{¶22} Evid.R. 103(A) governs “Rulings of Evidence” and provides,

in pertinent part, as follows:

“Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

affected, and

***

(2) Offer of proof. In case the ruling is one excluding evidence,

the substance of the evidence was made known to the court by

offer or was apparent from the context within which questions

were asked. * * *”

Thus, a plain reading of Evid.R. 103(A)(2) indicates that an offer of proof is

required in order to preserve any error in excluding evidence, unless the

substance of the excluded evidence is apparent in the record. State v. Brooks,

,

(1989). Highland App. No. 13CA13 16

{¶23} Further, in Greene v. Marchyn, 4th Dist. Scioto No. 99CA2662,

, this Court explained as follows with respect to offers of

proof:

“ ‘[A] party may not predicate error on the exclusion of

evidence during the examination in chief unless two conditions

are met: (1) the exclusion of such evidence must affect a

substantial right of the party and (2) the substance of the

excluded evidence was made known to the court by proffer or

was apparent from the context within which questions were

asked.’ Id.; see, also, State v. Davie (1997),

,

.

In Gilmore [

,

], the court

recognized that “the better practice * * * may be to proffer

excluded evidence.”

,

. The court stated, however, that ‘under Evid.R. 103 a party

is not required to proffer excluded evidence in order to preserve

any alleged error for review if the substance of the excluded

evidence is apparent to the court from the context within which

questions were asked.’ Id.” Highland App. No. 13CA13 17

It has been held that in order to establish the first prong of Evid.R. 103(A) an

appellant must be able to demonstrate that the error alleged affected the final

determination of the proceeding. Campbell v. Johnson,

,

; citing Smith v. Flesher,

,

(1967); Schmelzer v. Farrar,

,

.

{¶24} According to the Moser court, the reasoning of which was

relied upon by the trial court, an offer of proof generally consists of two

elements:

“First, the offering party must inform the trial court as to the

legal theory upon which admissibility is proposed. Second, an

offering party must show what a witness was expected to testify

to and what that evidence would have proven or tended to have

proven. See 4 Ohio Jurisprudence 3d (1978) 355, Appellate

Review, Section 172. While the proffer of the expected

testimony need not be as specific as the testimony itself would

have been it must nonetheless be sufficient to enable the

reviewing court to determine roughly what, if any, impact the

testimony may have had upon the final disposition of the case.”

Moser v.

. Highland App. No. 13CA13 18

As discussed above, Moser involved a situation where the trial court refused

to allow the parties’ seventeen and one half year old daughter to testify in a

domestic matter. On appeal, the court held Appellant’s proffer of the child’s

testimony to be insufficient. The proffer in that case consisted of the

following:

“O.K. O.K., just for purposes of proffering into the record. Uh,

I wish to call the uh, daughter of the parties. Sunday Moser.

Sunday’s age [is] 17 [and a] half, and I wish her to testify as to

grounds, and the Court has refused that.”

.

Based upon that proffer, the Moser court held that it was “unable to make a

determination as to whether the trial court’s error was prejudicial to

appellant.”

{¶25} Here, upon being informed by the trial court that the parties’

minor child would not be permitted to testify, Appellant made an offer of

proof, or proffer, of the child’s testimony. Thus, this is not a situation

where no proffer was made, but rather, a question of whether the proffer was

sufficient. The matter below was essentially limited to the issue of spousal

support and the question of whether it should be terminated as a result of the

alleged cohabitation of Appellee with her boyfriend, Albert Eastman.

Appellant’s case was essentially based upon the alleged eye-witness Highland App. No. 13CA13 19

testimony of his sixteen year old son, who had lived in the house with

Appellee until just prior to the proceedings at issue. When it became clear

that the trial court would not allow the child to testify, Appellant made the

following proffer:

“It would be our position that [D.B.] having resided in the

house is in a supreme position to be able to testify that as to

who lived and who did not live in the household, how long they

lived there; when they would spend the night there. The child

would be able to testify as to who brought groceries in and out

of the house, who paid for bills, who bought the children shoes,

clothes. Who bought Ms. Buckmaster shoes and clothes and

various other gifts as well as other necessary living expenses

and as well as to be able to testify as to Ms. Buckmaster’s

relationship and how she phrased what Mr. Eastman’s role was

in raising them as essentially a father figure who would be able

to discipline the children in the house and who’s wishes should

be respected in the home by the minor children.”

{¶26} We conclude the substance of this proffer differs vastly from

the proffer that was held to be insufficient in Moser. A review of the record

makes it clear that Appellant sought to have his son testify that Albert Highland App. No. 13CA13 20

Eastman lived in the residence, contributed to groceries and bills and also

purchased clothes and shoes for Appellee and the children. Thus, we

conclude that Appellant’s proffer was sufficient. As such, we do not reach

the question of whether Appellant’s proffer was unnecessary under Evid.R.

103(A)(2).

{¶27} Considering that the child and Appellant’s other minor children

possessed first hand knowledge of the living situation between Albert

Eastman and Appellee, we believe the exclusion of the testimony at issue

was prejudicial to Appellant, especially in light of the fact that he was not

provided with notice of this court policy to begin with and, as such, had not

taken other measures to prove his claims. Thus, we believe that the

exclusion of the evidence at issue affected a substantial right of Appellant in

that it affected the final determination. As a result, we further find that the

exclusion of the child’s testimony was not harmless error.

{¶28} In light of the foregoing, which determined that Appellant’s

proffer was sufficient for purposes of appellate review and that the trial court

abused its discretion in excluding the proffered testimony, Appellant’s

fourth and fifth assignments of error are sustained. Highland App. No. 13CA13 21

ASSIGNMENT OF ERROR VI

{¶29} In light of our disposition of Appellant’s fourth and fifth

assignments of error, we do not reach the merits of Appellant’s sixth

assignment of error, which contends that the trial court’s findings with

respect to cohabitation were against the manifest weight of the evidence.

Accordingly, we must reverse the decision of the trial court and remand this

matter for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED. Highland App. No. 13CA13 22

Hoover, J., concurs in judgment only with concurring opinion:

{¶ 30} I concur in the judgment of the principal opinion; but I would

not analyze Assignments of Error I, II, and III using the Rules of

Superintendence or Civ. R. 83. The trial court erred by not permitting the

sixteen-year old son of the parties to testify, contravening the Rules of

Evidence. The Rules of Evidence clearly apply to domestic relations cases

just as any other civil or criminal cases. As the "local practice" of not

allowing minor children of the parties to testify in domestic relations

proceedings was never even adopted as a local rule, I would not analyze the

assignments of error with respect to the Rules of Superintendence or Civ. R.

83.

{¶ 31} I agree with the principal opinion with respect to Assignments

of Error IV, V, and VI.

{¶ 32} Therefore, I would also reverse the judgment of the trial court

and remand this matter for proceedings consistent with this opinion. Highland App. No. 13CA13 23

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that the Appellant recover of 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 Highland County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion. Hoover, J.: Concurs in Judgment Only with Concurring Opinion.

For the Court,

BY: ______________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.