I respectfully dissent from the majority opinion and would reverse the judgment of the trial court.
In the first assignment of error, the majority implicitly adopts a three-pronged test for determining when a refusal of sexual relations constitutes grounds for divorce. Under the second prong of that test, the majority finds that appellee's denial of sexual relations was justified by appellant's refusal to produce his pay stub and, on this basis, concludes that appellant failed to establish grounds for divorce.
However, even assuming that appellee's suspicions about appellant's lack of fidelity initially justified her denial of access, I believe that the inability to resolve the issue of appellant's suspected infidelity, coupled with appellee'scontinued denial of the right to marital intercourse, for over one year, contributed to undermining the basic structure of the marriage relationship. Thus, coupled with the additional evidence adduced by appellant as to the deteriorating relationship, I would hold that appellant established prima facie grounds for his complaint.
Furthermore, I must dissent from the majority's conclusion reached under the second assignment of error, that appellant failed to make a sufficient proffer of the testimony of his daughter as to allow this court to determine whether the trial court's error in excluding the testimony was prejudicial.
Specifically, I do not agree with the majority's conclusion that, under the facts before us, the proffer of evidence required by Evid.R. 103(A) was necessary to preserve the trial court's error in excluding Sunday Moser as a witness in this case. The Supreme Court of Ohio in Totten v. Estate of Miller (1941), 139 Ohio St. 29, 21 O.O. 545, 37 N.E.2d 961, paragraph two of the syllabus, held as follows:
"When a witness is precluded from testifying on the ground of his alleged incompetency as a witness and not on the ground that his proposed testimony is incompetent, his exclusion, if erroneous, will be presumed to be prejudicial, and it is not necessary to proffer his proposed testimony in order to challenge or review the action of the court as to his exclusion." See, also, Vincenzo v. Newhart (1966), 7 Ohio App.2d 97, 36 O.O.2d 213, 219 N.E.2d 212 affirmed (1967), 11 Ohio St.2d 63, 40 O.O.2d 67, 227 N.E.2d 627; Torrance v. Torrance *Page 583 (1946), 147 Ohio St. 169, 34 O.O. 57, 70 N.E.2d 365; Loney v.Walkey (1921), 102 Ohio St. 18, 130 N.E. 158, and Wolf v.Powner (1876), 30 Ohio St. 472.
I believe that the majority's stated rationale for disregarding the syllabus of Totten, supra, as being inapplicable, because Sunday Moser was excluded as a matter of public policy, and not because of her incompetence as a witness, is a distinction without a difference. Black's Law Dictionary (6 Ed.1990) 284, defines a "competent witness" as "one who is legally qualified to be heard to testify in a cause. * * *"
In the first instance, the fact that the enunciated public policy is not among the enumerated exceptions to the presumption of competency included in Evid.R. 601 does not, as suggested by the majority, preclude the conclusion that Miss Moser was excluded because of her alleged incompetency. Nevertheless, in the case before us, the majority concludes the trial court found that as a matter of public policy, children are not qualified to testify in the divorce proceedings of their parents because it puts an "undo [sic] burden on the child." However, the fact remains that the trial court refused to allow Sunday Moser to testify, not because of the testimony that would be elicited, but instead because of her relationship to the parties. Furthermore, as was recognized by the majority, the trial court's exclusion of Miss Moser as a witness was clearly contrary to the law of Ohio. Under these circumstances, I do not believe that a proffer was a prerequisite to our consideration of whether the error in excluding the witness was prejudicial to appellant.
Finally, I must also disagree with the majority's finding that the proffer made by appellant was insufficient to put this court on notice of what Sunday Moser's testimony would have been. Appellant attempted to call his daughter as a witness in his case-in-chief. Appellant's counsel, in making her proffer of Miss Moser's testimony, stated that "I wish her to testify as to grounds * * *." I believe that, inasmuch as Miss Moser was called as a corroborating witness, the substance of what her testimony would have been was apparent from the context of her father's testimony. Thus, the proffer was sufficient under Evid.R. 103(A)(2). The prejudice resulting to appellant in the trial court's refusal to allow Miss Moser to testify is highlighted by the fact that the other evidence presented at trial was found to be insufficient to corroborate the grounds of appellant's complaint.
Accordingly, I would reverse the judgment of the trial court and remand the cause for a new trial. *Page 584