ON APPEAL FROM THE
HAMILTON COUNTY COURT OF APPEALS
FIRST APPELATE DISTRICT, CASE NO. C-020103
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APPELLANT TERESA (redacted)
MEMORANDUM IN SUPPORT OF
JURISDICTION
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RICHARD DUCOTE, ESQ.
Of the Louisiana Bar
Counsel pro hac vice
Richard Ducote & Associates, PLC
731 Fern Street
New Orleans, LA 70118
(504) 314-8400
C. Richard Martin, Esq.
(Ohio Bar # 0066703)
FLACH DOUGLAS & CO. LPA
114 Main Street
Milford, OH 45150
(513) 831-6697
Counsel for Appelant
TABLE OF CONTENTS
EXPLANATION OF WHY THIS CASE IS A CASE OF
PUBLIC OR GREAT GENERAL INTEREST...................... 4
STATEMENT OF THE CASE AND FACTS................................. 5
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW........... 9
Proposition of Law No. I:
The Court of Appeals erred by denying Appellant's Motions to Supplement the Record on Appeal with the report of a court-appointed expert (herinafter the Borack report), where the denial substantially impaired Appellant's ability to urge critical assignments of error and essential facts, and where the report's submission to the trial court judge's "confidential file" was, in and of itself, grounds for appeal
..................................................... 9
Proposition of Law No. II:
When parties negotiate and prepare a settlement agreement outside of the courtroom, the court is not required to accept the settlement agreement presented by the parties as a binding contract, but the court must instead be satisfied that the agreement is fair, just, and reasonable
................................................................ 12
Proposition of Law No. III:
It is not competent or admissible evidence for an expert to opine as to the credibility of a party or witness
.................................................................14
Proposition of Law No. IV:
Rule 60(B) motions for relief from judgment are remedial actions that are to be liberally construed so that the ends of justice may be served
.................................................................15
Proposition of Law No. V:
A trial court abuses its discretion when its analysis of the factual evidence and the law reveals no sound reasoning process to support its unreasonable and arbitrary attitude toward the case
........................................................................16
CONCLUSION.....................................................17
CERTIFICATE OF SERVICE...................................18
APPENDIX
Judgment Entry of the Hamilton County
Court of Appeals (March 12, 2003)............................19
I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST.
The decision of the Court of Appeals in this case is one of both public and great general interest, and is of broad general significance because it impairs the ability of parents 
to protect their children through the court system. The Court of Appeals decision does so in two important respects:
1) It reinforces the frequent and continuing lower court practice of allowing incompetent, unqualified court-appointed "experts" to unduly influence custody determinations that involve critical issues of domestic violence and child sexual abuse, and
2) It prioritizes contract principles over the lives of children who need the protection of the court system, by ruling that a custody agreement is a "binding contract" regardless of fairness, equity, or the best interests of children.
The factual scenario that has given rise to this appeal and which has imperiled the lives of these children is a matter of great public interest because it is a situation that is capable of repetition, yet evading review by this state's appellate courts. The practice of court-appointing incompetent "experts"1 that usurp judicial decision-making processes, which should be based upon admissible facts and evidence, tends to coerce protecting parents into consent judgments that do not protect their children from domestic violence and sexual abuse. As such, this practice evades appellate scrutiny. While courts favor consent judgments for purposes of judicial economy, it cannot and should not do so at the expense of children's lives.
This problem is not unique to Ohio's lower courts, and, in fact, is currently the subject of increasing public debate across the country. As leading child custody and visitation treatise states:
Many members of the legal profession are among those subscribing to the erroneous notion that there is an epidemic of fabricated accusations of sexual abuse in child custody and visitation disputes. 
In fact, most ongoing child sexual abuse is not disclosed in any contest. Nevertheless, parents who allege that the other parent is abusing the child risks having to confront the consequences of the backlash. The accusing parent may lose custody or even the right to visitation if the judge does not credit the accusation. 2
Footnote 1
In the record below is the deposition of Dr. Borack, the psychologist whose report is at issue in this appeal. In his deposition, Dr. Borack testified that he is not an expert in determining if a child has been sexually abused, but that he is an expert in determining if the allegation is false. He did not understand the suggestion that his claim is nonsensical.
Footnote 2
Katheryn D. Katz, Allegations of Abuse in Child Custody and Visitation Proceedings, in Sandra Morgan Little (Ed.), Child Custody & Visitation Law and Practice, Vol. 4, (Matthew Bender, 1999), ' 31.02, 31-34, 35. See generally also, Billie Wight Dziech & Judge Charles Schudson, On Trial: America's Courts and Their Treatment of Sexually Abused Children (Beacon Press, 1991); Carol Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L. Q. 527 (2001).
II. STATEMENT OF THE CASE AND FACTS
A. Procedural Posture
This is an appeal from the denial of Ms. (redacted)'s Rule 60(B) motion to vacate what was purportedly a "consent" amended shared parenting plan. On June 4, 2001 Defendant-Appellant Teresa (redacted) 
filed a Rule 60 (B) Motion, requesting relief from an amended shared parenting plan entered on September 25, 2000. [Rule 60(B) Motion,T.D.180; Amended Shared Parenting Plan, T.D.166]. Testimony and evidence on the motion was taken before Magistrate Gregory R. Theile on June 19, 2001 [T.P. 250] and on July 13, 2001 [T.P. 250]. Magistrate Theile denied the motion on July 26, 2001 [Magistrate's Decision, T.D. 196]. 
Appellant requested separate findings of fact and conclusions of law on August 1, 2001[T.D.201], which were entered by Magistrate Theile on September 21, 2001[T.D.248]. Appellant then filed a timely objection to Magistrate Theile's decision with findings of fact and conclusions on October 4, 2001[T.D. 251]. A hearing was held on Ms. (redacted)'s objections before Judge Ronald Panioto on January 17, 2002 [T.P. 260]. Judge Panioto, with no substantive analysis of the issues, and without articulating his reasons, overruled the objections, thus adopting the Magistrate's decision, and stayed the proceedings pending the conclusion of this appeal [Entry,T.D. 258]. 
Appellant filed her Notice of Appeal on February 14, 2002 [T.D. 259]. The Appellant sought reversal from Judge Panioto's judgment overruling her objections to the findings of fact, conclusions of law, and denial of her Rule 60 (B) Motion by Magistrate Theile. On March 12, 2003, the Hamilton County Court of Appeals issued a judgment entry affirming the decision of the lower court.
B. Statement of Facts
On September 14, 1999 the Trial Court entered both a decree of divorce for Appellant Teresa (redacted) and Appellee (redacted), and a decree of shared parenting plan concerning the parties two children, (redacted) (born 8/10/96) and (redacted) (born 12/11/92), allotting 70% of the time to Appellant Ms. (redacted) [T.D.138, 139]. By December 23, 1999, Appellant filed motions to suspend Appellee's parenting time and asserted that the reports of the children and their therapists indicated sexual abuse 
by the Appellee father, while the father claimed Appellant fabricated the allegations [T.D.142 - 146, 148-153]. A "psychological evaluation" was ordered to be performed by Michael Borack, Ph.D., 
a local psychologist [T.D. 148, 160]. After receiving Dr. Borack's reports, William Abernethy, Ms. (redacted)'s attorney, essentially capitulated. Mr. Abernethy essentially forced a highly distraught Appellant to sign a new shared parenting plan ("amended plan") presented to her on September 25, 2000 [Final Decree, T.D. 166], as he had no strategy to attack Dr. Borack's report 
[Testimony before Magistrate 6/19/01, pp. 26-61, T.P.250; Testimony before Magistrate, 7/13/01, pp. 3-67 ]. Relying on the deficient advice of her counsel, and that of a psychologist whom she was falsely led to believe could render an opinion on the validity of such a plan, Appellant very reluctantly and while emotionally overwrought signed the plan which fails to protect the children, gives Appellee much more access to the children, and sets up a scheme wherein Appellant's continued actions to protect her children 
automatically result in the children's placement in their father's custody, despite the evidence of his abuse 
[Final Decree p. 166].
Appellant always knew that the amended shared parenting plan was deficient and contrary to her children's interest, but she signed under duress without making an informed, intelligent decision in view of the options not presented to her and Mr. Abernethy's dismal prediction that she would lose her children completely if she did not sign the new plan. There was simply no informed consent [Testimony before Magistrate 6/19/01, pp. 26-61,T.P.250; Testimony before Magistrate, 7/13/01, pp. 3-67 ]. This was made especially clear after the revelation that the psychologist, whose report was relied upon to draft the plan, was incompetent in evaluating cases involving allegations of child sexual abuse [Dr. Borack's deposition, attached to Defendant's Opposition to Motion for Emergency Hearing, T.D. 256, pp. 4-12, 25-31]. Therefore, on June 4, 2001, Appellant filed a Rule 60 (B) Motion for Relief from Amended Shared Parenting Plan. [Defendant's Motion, T.D. 180].
The Magistrate after hearings on June 19 and July 13 denied her relief on July 26, 2001, only finding that she merely changed her mind as to the best course of action, incorrectly casting the circumstances [Magistrate's Decision. T.D. 196], a position totally unsupported by the evidence.
III. ARGUMENT IN SUPPORT OF
PROPOSITIONS OF LAW
Proposition of Law I:
The Court of Appeals erred by denying Appellant's Motions to Supplement the Record on Appeal with the report of a court-appointed expert (herinafter the Borack report), where the denial substantially impaired Appellant's ability to urge critical assignments of error and essential facts, and where the report's submission to the trial court judge's "confidential file" was, in and of itself, grounds for appeal.
Here, Appellant filed a motion with the trial court and two motions with the Court of Appeals seeking to supplement the record on appeal with the report of a court-appointed "evaluator," Dr. Borack. Dr. Borack was appointed by the trial court to conduct psychological evaluations. His report was submitted to the trial court on May 2, 2000. The submission of that report to the trial court judge became a central catalyst in the "negotiation" process in this case, and in events leading up to this appeal. Despite this fact, all of Appellant's requests to supplement the record were denied by both the trial court and the Court of Appeals. Although Dr. Borack's report was submitted directly to the trial court [See Judgment Entry, p.19] and the trial judge reviewed it, 
it was maintained in the trial court's "confidential" file. Appellant's presumption that it was part of the official trial court record was reasonable, and she repeatedly attempted to have the trial and appellate court supplement the record with the report when it was learned that the report was not sent to the appellate court with the rest of the record. Refusing to supplement the record with this report which was the focus of the Rule 60 (B) motion and at the heart of the appeal does not serve any legal, rational, or policy purpose, when the report itself was not matter alien to the record below. Some unofficially designated "confidential" file in these circumstances must be considered part of the record.
In the same breath, the Court of Appeals, in its Judgment Entry, circularly 
reiterates the denial of Appellant's Motion to Supplement the Record, and chastises 
Appellant for providing an incomplete record to the Court. Confronted with an incomplete record, the Court of Appeals admittedly, then, "presumes the validity of the court's proceedings." By ruling in this manner, the Court of Appeals has acknowledged that its denial of Appellant's motions to supplement precluded record material essential to the full and fair resolution of her case on appeal.
The significance of the Borack report to Appellant's 60(B) Motion in the trial court is unambiguous. Following the filing of the report into the judge's "confidential file," Ms. (redacted)'s attorney advised her that if she did not settle the case, she would lose custody of her children. The substantive report itself was essential to the 60(B) motion for purposes of showing that the conduct and recommendations of Ms. (redacted)'s attorney at the time were unreasonable and unduly coercive in light of the fact that, unbeknownst to Ms. (redacted), Dr. Borack was not qualified to conduct an evaluation of the type he conducted, was incompetent, and had written a report replete with inadmissible and baseless conclusions as to the risks Appellee posed to Ms. (redacted)'s children and the credibility of witnesses. Had Ms. (redacted) been made aware that the report was inadmissible, she could not have been coerced into a shared custody agreement that placed her children in grave danger, albeit, less danger than the alternative loss of custody forecast to her by her attorney at the time. The Borack report is specifically mentioned in the 60(B) motion, and was discussed extensively in the hearings on the motion. All parties had a copy of the report.
Furthermore, Dr. Borack's report is essential to Ms. (redacted)'s 60B Motion (and her appeal of the ruling on that motion) because the trial court's practice of receiving these reports into the judge's "confidential file" prior to any party having the opportunity to exclude or impeach its contents tends to not only create actual bias on the part of the judge, but also to create a perception of bias, that, as here, can dramatically influence a litigant's belief that she can obtain a fair and impartial trial before the judge. In the face of an unimpeached report having been submitted to the judge which makes inappropriate and inadmissible statements regarding her credibility, Ms. (redacted) could not believe that a fair trial was possible. The court's acceptance of the Borack report into a "confidential file" was a critical fact which unduly and impermissibly influenced the "negotiation" process in this case.
Even Appellee's brief made it abundantly clear that Appellee's continued success on appeal hinges upon Appellant's inability to supplement the record with Dr. Borack's report. In response to every argument by Appellant, Appellee essentially asserts that the issue is resolved in his favor because the Borack report was not made part of the record. 
In light of such clear indication that Appellant was crippled by the exclusion of the Borack report, the Court of Appeals erred by denying Appellant's repeated motions to have it included into the record and must be reversed.
Proposition of Law II.
When parties negotiate and prepare a settlement agreement outside of the courtroom, the court is not required to accept the settlement agreement presented by the parties as a binding contract, but the court must instead be satisfied that the agreement is fair, just, and reasonable.
The record is abundantly clear that there were never any true negotiations relative to the proposed amended plan, but whatever purported "negotiation" occurred between the parties relative to the proposed amended shared parenting plan was only done in the confines of the respective lawyers' offices, and through telephone calls and letters- not in court. The trial court never assessed nor passed on whether the amended plan was fair, just, or reasonable. Consequently, the amended parenting plan is not a contract between the parties beyond judicial scrutiny, and is subject to being vacated. Griener v. Griener, 610 Ohio App.2d 88, 399 N.E.2d 571 (1979); Blakemore v. Blakemore, 5 Ohio St.3d 2171, 450 N.E.2d 1140 (1983). Thus, the trial court erred to the prejudice of Appellant and abused its discretion in finding that the settlement of the amended shared parenting plan was, as a matter of law, a binding contract, regardless of whether or not it is fair or equitable [Magistrate's Decision and Entry Approving With Findings of Fact and Conclusions of Law, T.D. 248; Defendant's Objection to Decision of Magistrate, T.D. 249]. There is nothing fair, equitable, or reasonable about the new plan based on the incompetent work of Dr. Borack, who takes the absurd position that he is an expert in "false allegations" but not in "true allegations" of sexual abuse [Dr. Borack's deposition, attached to Defendant's Opposition to Motion for Emergency Hearing, T.D. 256, pp. 4-12, 25-31].
Here, the Court of Appeals erroneously concluded that the agreement constituted a "binding contract" and "neither a change of heart nor poor legal advice [was] a ground to set it aside." Walther v. Walther (1995), 102 Ohio App. 3d 378, 383, 657 N.E.2d 332. Not only is this finding contrary to Ohio law, but also it is contrary to a public policy that should mandate lower courts to prioritize the best interests of children over contract principles when exercising its equitable powers.
Proposition of Law III.
It is not competent or admissible evidence for an expert to opine as to the credibility of a party or witness.
Dr. Borack in his report sent to Mr. Abernethy expresses as the basis of his ultimate opinions his own personal assessment of the credibility of the parties, as he says, "individual judges differ as to whether or not they will admit statements about credibility." [Dr. Borack's deposition, attached to Defendant's Opposition to Motion for Emergency Hearing, T.D. 256, pp. 4-12, 25-31, 37-39]. Ohio law is clear that expert testimony as to a party's credibility is inadmissible. Rasalan v. TJX Operating Cos., Inc., 129 Ohio App.3d 364, 717 N.E.2d 1123 (9th Dist. 1998). This fatal defect did was not noted by Mr. Abernethy [Testimony of William Abernathy, July 13, 2001,T.P. 249, pp. 29-63; Appellant's sister's testimony, Appellant's testimony, Transcript of June 19, 2001, T.P. 250, pp. 16-18, 27-33, 42-44].
Here, the Magistrate, the Judge, and now, the Court of Appeals completely ignores this issue, when, in fact, it undermines all of the other factual findings of the Magistrate and supports the justification for the liberal construction of Rule 60(B) in this instance so that the ends of justice are met.
Proposition of Law IV.
Rule 60(B) motions for relief from judgment are remedial actions that are to be liberally construed so that the ends of justice may be served.
This case represents the unconscionable situation of vulnerable children's lives being ruled by an incompetent psychological report, which could not be admitted into evidence to begin with, simply because an attorney was not alert enough to provide Ms. (redacted) with the representation she critically needed. Instead, he frightened her with the loss of her children to procure her signature to a bad plan exposing her children to peril.
Thus, in the interest of justice, now that Dr. Borack's report can be examined in the clear light of competent legal scrutiny, the Amended Shared Parenting Plan should be vacated and the case sent to trial based on competent, admissible, evidence. Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 665 N.E.2d 1102 (1986); In Re Whitman, 81 Ohio St.3d 239, 690 N.E.2d 535 (1998).
The Court of Appeals concluded that Civil Rule 60B entitles a party to relief only upon the fraud, misrepresentation, or misconduct of "an adverse party." In reaching this conclusion, however, the Court obviously and erroneously limited Ms. (redacted)'s Rule 60B Motion to the language of Rule 60B(3). Pursuant to Rule 60B(5), however, a party may invoke the rule for "any other reason justifying relief from the judgment." This provision is clearly designed to invoke the equitable powers of the court in the interests of justice. Where the lives of children are at stake and have been further imperiled by the judicial system itself, the equitable powers of the court should be invoked to ensure that the fate of these children is not determined by the undue coercion wrought by an incompetent court-appointed evaluator.
Proposition of Law V.
A trial court abuses its discretion when its analysis of the factual evidence and the law reveals no sound reasoning process to support its unreasonable and arbitrary attitude toward the case.
The testimony adduced at the June 19, 2001, and July 13, 2001, hearings [T.P. 249, 250] before Magistrate Theile in no way supports the findings that Ms. (redacted) signed the amended plan because she believed it best for her children, and then later changed her mind. Instead, the tearful, frightened Appellant only signed the plan because she was woefully misled by Mr. Abernethy into believing that she had no option, except to lose her children, because of the Borack report. Furthermore, the Magistrate's reliance on Walther v. Walther, 102 Ohio App.3d 378, 657 N.E.2d 332 (1995), as controlling, is patently misplaced, since the "settlement" in the case at bar was not confected in court as it was in Walther.
Accordingly, the Magistrate's view of the case, as adopted by Judge Panioto, and now the Court of Appeals, is an abuse of discretion since the approach to both the law and the facts is unreasonable and arbitrary. Wyant v. Marble, 135 Ohio App.3d 559, 735 N.E.2d 9 (1st Dist.1999).
Conclusion
For the reasons discussed above, this case involves matter of public and great general interest. Appellant respectfully requests that this Court grant jurisdiction so that the important issues presented in this case will be reviewed on the merits.
Appellant further prays that this Honorable Court thereafter reverse the trial court's decision below and grant her Rule 60(B) motion for relief from judgment.
Respectfully submitted,
Teresa (redacted), Appellant
By counsel:
___________________________
Richard Ducote, pro hac vice
Of the Louisiana Bar
731 Fern Street
New Orleans, LA 70118
(504) 314-8400
C. Richard Martin, Esq.
(Ohio Bar # 0066703)
FLACH DOUGLAS & CO. LPA
114 Main Street
Milford, OH 45150
(513) 831-6697
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Memorandum in Support of Jurisdiction was served by ordinary U.S. mail to counsel for appellee, Dominic Mastruserio, Esq., 306 E.14th Street, Cincinnati, OH 45202, to the Hamilton County Court of Common Pleas, and to the Hamilton County Court of Appeals, First Appellate District, this __28th__ day of April, 2003.
__________________________
Richard Ducote
