Blevins v. Blevins

[Cite as Blevins v. Blevins, 2019-Ohio-297.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

DIANE L. BLEVINS :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-23
:
v. : Trial Court Case No. 2017-DR-43
:
JOHN D. BLEVINS : (Domestic Relations Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 1st day of February, 2019.

...........

MICHELLE M. MACIOROWSKI, Atty. Reg. No. 0067692, 7333 Paragon Road, Suite 170,
Dayton, Ohio 45459
Attorney for Plaintiff-Appellee

KERI E. FARLEY, Atty. Reg. No. 0076881, 4031 Colonel Glenn Highway, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant

.............
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FROELICH, J.

{¶ 1} John D. Blevins (“John”) appeals from a final judgment and decree of divorce

entered by the Greene County Common Pleas Court, Domestic Relations Division. The

judgment of the trial court will be affirmed.

Factual and Procedural Background

{¶ 2} John D. and Diane L. (“Diane”) Blevins were married on June 13, 1992, and

had three children together. When the couple separated in June 2017, one son was a 20-

year-old college student and their daughter was a 15-year-old high school student. Their

oldest son died in 2011, at the age of 16.

{¶ 3} John is a senior materials engineer in the Air Force research laboratory at

Wright-Patterson Air Force Base. He travels “20 to 25 percent of the time” for his job,

primarily on weekdays. His annual salary in 2018 was $143,193.

{¶ 4} Diane holds a bachelor’s degree in elementary education and a master’s

degree in early childhood education. She previously worked full-time as a public school

teacher, but beginning in 2003 did only substitute teaching, in order to be at home with

the couple’s children. Her full-time teaching license expired a number of years ago. In

2017, she earned a total of $3,069 as a substitute teacher. On August 1, 2018, Diane

began a full-time position teaching at an early childcare and education center in

Beavercreek, earning $24,900 per year at a rate of $12.00 per hour.

{¶ 5} Diane filed for divorce on February 16, 2017. Both parties testified at a

hearing held a year later, on February 20, 2018. (See Transcript (“Tr.”), Vol. I). During

that hearing, John also presented the deposition testimony of a vocational expert who

offered his opinion as to Diane’s “employability” and earning potential (id., pp. 38-60; see
 -3-

2/20/18 Deposition of John Finch, Ph.D. (“Finch Depos.”)), and Diane presented the

testimony of an expert witness regarding the reasonableness of the fees charged by

Diane’s attorney. (Tr., Vol. II, pp. 5-15). In addition, the trial court conducted a private

interview on that date with the parties’ minor daughter (see id., pp. 4, 217); (see also Tr.,

Vol I, pp. 6-7, 81), which is not part of the record.

{¶ 6} On May 25, 2018, the trial court issued a final judgment and decree of divorce

that, among other things, awarded spousal support to Diane in the amount of $2,650 per

month for 120 months; 1 denied John’s request for an award of one-half of Diane’s

earnings from January to June 2017; ordered John to pay $20,000 of Diane’s attorney’s

fees; and awarded Diane child support in the amount of $873.21 per month. (See Trial

Court Docket (“Doc.”) #103, Final Judgment and Decree of Divorce, pp. 5-6, 12, and

attached Shared Parenting Plan, p. 3).

{¶ 7} John filed a timely appeal from that judgment entry, raising five assignments

of error:

1) The trial court lost its way in determining [Diane’s] earning ability for

purposes of calculating spousal support.

2) The trial court abused its discretion in not imputing income to [Diane] for

purposes of calculating child support.

3) The trial court abused its discretion in not permitting [John] to pursue one-

half of [Diane’s] first half earnings [for 2017].

1
John asserts that the trial court awarded Diane spousal support “for an indefinite time
period, although [Diane] only requested [such support] for 10 years.” (Brief of the
Appellant, “Statement of the Case”). To the contrary, the trial court limited the spousal
support award to “a term of 120 months” (i.e., 10 years). (See Doc. #103, Final Judgment
and Decree of Divorce, p. 6).
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4) The trial court abused its discretion in awarding [Diane] $20,000 in

attorney fees.

5) The trial court deprived [John] of due process when it would not permit

him to present his own case or cross-examine [Diane] on contested issues.

Assignment of Error #1 – Spousal Support

{¶ 8} A trial court “enjoys broad discretion” with regard to awards of spousal

support. Morgan v. Morgan, 2d Dist. Montgomery No. 27164, 2017-Ohio-402, ¶ 47. An

abuse of discretion occurs when the trial court’s decision regarding spousal support is

“unreasonable, arbitrary or unconscionable.” Hagar v. Sabry, 2d Dist. Montgomery No.

27967, 2018-Ohio-4230, ¶ 10, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983).

{¶ 9} In determining whether spousal support is appropriate and reasonable, as

well as its amount, nature, and duration, a trial court must consider a variety of factors.

Baskin v. Baskin, 2d Dist. Montgomery No. 27373, 2017-Ohio-7632, ¶ 10. These factors

include: 1) the parties’ income from all sources; 2) their relative earning abilities; 3) their

ages and physical, mental, and emotional conditions; 4) the retirement benefits of the

parties; 5) the duration of the marriage; 6) the extent to which it would be inappropriate

for a party to seek employment outside the home (particularly if a custodian of a minor

child of the marriage); 7) the parties’ standard of living during the marriage; 8) their relative

educations; 9) the parties’ relative assets and liabilities; 10) the contribution of each party

to the education, training, or earning ability of the other party, including, but not limited to,

any party’s contribution to the acquisition of a professional degree of the other party; 11)

the time and expense necessary for the spouse who is seeking spousal support to acquire
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education, training, or job experience so that the spouse will be qualified to obtain

appropriate employment; 12) the tax consequences, for each party, of an award of

spousal support; and 13) the lost income production capacity of either party that resulted

from that party’s marital responsibilities. R.C. 3105.18(C)(1). The court also may consider

any other factor that it expressly finds to be relevant and equitable. R.C. 3105.18(C)(1)(n).

{¶ 10} “When considering the relative earning abilities of the parties in connection

with an award of spousal support, Ohio courts do not restrict their inquiry to the amount

of money actually earned, but may also hold a person accountable for the amount of

money [that] a ‘person could have earned if he [or she] made the effort.’ ” Kraft v. Kraft,

2d Dist. Montgomery No. 25982, 2014-Ohio-4852, ¶ 21, quoting Miller v. Miller, 2d Dist.

Montgomery No. 14540, 1994 WL 730560, *4 (Dec. 28, 1994). “Because R.C. 3105.18(C)

permits inquiry into a party’s earning potential, Ohio courts often impute income to parties

who are voluntarily underemployed or otherwise not working up to their full earning

potential.” Miller at *4, citing, inter alia, Frost v. Frost, 84 Ohio App.3d 699, 618 N.E.2d

198 (10th Dist.1992).

{¶ 11} John argues that the trial court erred by failing to impute additional earning

potential to Diane for purposes of calculating the amount and duration2 of the spousal

support she was to receive. Having reviewed the record, we cannot conclude that the trial

court abused its discretion with respect to the amount of spousal support awarded in this

instance. John’s vocational expert did opine that Diane’s “optimal vocational option” would

be to return to school to complete the coursework necessary to reinstate her Ohio full-

2
See fn.1, above. Because John raises no challenge to paying spousal support for 10
years, we will not address that aspect of the trial court’s judgment.
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time teaching license, and that doing so would give her an earning potential of $62,893

per year. (Fink Depos., pp. 31-32, 34). However, Diane testified that “it would be a terrible

struggle” for her to complete the necessary courses while also parenting their daughter

and working full-time in her current job. (Tr., Vol. I, pp. 98-99). She further testified that

she felt disadvantaged in seeking a full-time teaching position by her lack of familiarity

with modern technology and due to competing against more recent college graduates

with more “up-to-date thoughts on education.” (Id., pp. 99-100). She expressed doubt that

she would be capable of earning the $62,000 a year projected by John’s expert. (Id.).

{¶ 12} The judgment entry shows that the trial court did not wholly disregard the

vocational expert’s testimony. Based on Diane’s “education and job experience,” the court

“agree[d] that [Diane] may be capable for earning more than [her current income of]

$24,000.” (Doc. #103, Final Judgment and Decree of Divorce, p. 5). Nevertheless, the

court observed that Diane “has not had a [full-time] teaching license since 2011,” “has not

consistently worked full-time for many years,” and “will need to enroll and complete 9

credit hours as required by the Ohio Board of Education” in order to become eligible for

a full-time teaching license. (Id.). In light of Diane’s “current work schedule, parenting

responsibilities, and financial responsibilities,” the trial court found “it reasonable that

[Diane] shall complete the required courses within three years” after the February 20,

2018 hearing. (Id.). The court further signaled its willingness to consider modifying the

amount of spousal support “if [Diane] fails to renew her professional teaching license or

fails to obtain employment paying a higher wage” within those three years. (Id.).

{¶ 13} The record reflects that the trial court considered the relevant factors under

R.C. 3105.18(C)(1) in reaching its decision. The court highlighted specifically the parties’
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disparate current incomes, Diane’s reduced earning capacity due to leaving the full-time

workforce in order to raise their children, and the need for Diane to complete further

educational requirements in order to qualify for a higher-paying position. Weighing

conflicting evidence is a matter entrusted to the trial court, which was in the best position

to evaluate the evidence and assess the credibility of the witnesses. See Greene v.

Greene, 2d Dist. Montgomery No. 12051, 1990 WL 107857, *3 (July 23, 1990).

Furthermore, the trial court was not required to explain why it weighed some factors or

testimony more heavily than others, and an appellate court should not second-guess a

trial court’s factual determination unless there has been an abuse of discretion. Aldo v.

Angle, 2d Dist. Clark No. 09-CA-103, 2010-Ohio-2008, ¶ 33, citing Rock v. Cabral, 67

Ohio St.3d 108, 112, 616 N.E.2d 218 (1993).

{¶ 14} In addition, the record supports the trial court’s rejection of John’s argument

that Diane deliberately sought to avoid obtaining a better paid position, content to rely on

spousal support. The case law he advances as support for denying “altogether” an award

of spousal support to a “voluntarily underemployed” spouse is inapposite. See Croucher

v. Croucher, 2d Dist. Greene No. 2014-CA-43, 2016-Ohio-726. In Croucher, the appellant

former husband had a master’s degree in business administration, but still was working

only part-time nearly five years after being involuntarily let go from his former

employment. Id. at ¶ 4-6, 17. Mr. Croucher also was not the residential parent of the

couple’s minor children. Id. at ¶ 19. There, we found that the trial court did not abuse its

discretion in determining, based on the testimony of a vocational expert, that Mr. Croucher

was “voluntarily underemployed.” Id. at ¶ 17-18. Under the facts of the current case, we

find that the trial court did not abuse its discretion in declining to find that Diane, who was
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employed full-time and had primary day-to-day responsibility for the couple’s minor child,

was voluntarily underemployed.

{¶ 15} Finding no abuse of discretion in the trial court’s assessment of the spousal

support issue, we overrule John’s first assignment of error.

Assignment of Error #2 – Child Support

{¶ 16} Like spousal support calculations, calculations of child support are reviewed

for an abuse of discretion. See Payne v. Payne, 2d Dist. Montgomery No. 27584, 2017-

Ohio-8912, ¶ 6, citing Abrams v. Abrams, 2d Dist. Montgomery No. 27345, 2017-Ohio-

4319, ¶ 39.

{¶ 17} The Ohio Revised Code provides a basic child support schedule and a child

support computation worksheet to be used when calculating the amount of child support

to be paid pursuant to a child support order. R.C. 3119.021 and R.C. 3119.022. The basic

child support schedule and computation worksheet apply when the parents’ combined

gross income is between $6,600 and $150,000 per year. As to combined incomes

exceeding $150,000, the applicable statute provides in pertinent part as follows:

If the combined gross income of both parents is greater than one hundred

fifty thousand dollars per year, the court, with respect to a court child support

order, * * * shall determine the amount of the obligor’s child support

obligation on a case-by-case basis and shall consider the needs and the

standard of living of the children who are the subject of the child support

order and of the parents. The court * * * shall compute a basic combined

child support obligation that is no less than the obligation that would have

been computed under the basic child support schedule and applicable
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worksheet for a combined gross income of one hundred fifty thousand

dollars, unless the court * * * determines that it would be unjust or

inappropriate and would not be in the best interest of the child, obligor, or

obligee to order that amount. If the court * * * makes such a determination,

it shall enter in the journal the figure, determination, and findings.

R.C. 3119.04(B).

{¶ 18} “The starting point [for calculating child support] is parental income: either

gross income (for those employed to full capacity) or gross income plus potential income

(for those not employed to full capacity).” Morrow v. Becker, 138 Ohio St.3d 11, 2013-

Ohio-4542, 3 N.E.3d 144, ¶ 11, citing R.C. 3119.01(C)(5). Factors to be considered in

determining what a voluntarily-underemployed parent would earn if fully employed

include:

(i) The parent’s prior employment experience;

(ii) The parent’s education;

(iii) The parent’s physical and mental disabilities, if any;

(iv) The availability of employment in the geographic area in which the

parent resides;

(v) The prevailing wage and salary levels in the geographic area in which

the parent resides;

(vi) The parent’s special skills and training;

(vii) Whether there is evidence that the parent has the ability to earn the

imputed income;

(viii) The age and special needs of the child for whom child support is being
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calculated under this section;

(ix) The parent’s increased earning capacity because of experience;

(x) The parent’s decreased earning capacity because of a felony conviction;

(xi) Any other relevant factor.

R.C. 3119.01(C)(11)(a).

{¶ 19} As he did with respect to the trial court’s spousal support award, John

contends that the trial court erred by failing to impute to Diane the additional potential

income to which the vocational expert testified. Having concluded above that the trial

court did not abuse its discretion by failing to find that Diane was voluntarily

underemployed, however, we likewise find no abuse of discretion in the trial court’s failure

to impute additional income to Diane in calculating the child support award for their

daughter.

{¶ 20} John’s second assignment of error is overruled.

Assignment of Error #3 –Wife’s Early 2017 Earnings

{¶ 21} John argues that the trial court erred by refusing to designate as marital

property Diane’s earnings for the first half of 2017, while the parties were cohabiting.

During her hearing testimony, Diane confirmed that she did not contribute to the joint

household expenses from January through June 2017, but instead had her paychecks

from that timespan deposited directly into a bank account in her name alone. (Tr., Vol. I,

pp. 127-128, 131-132, 133, 134-137). When John’s attorney attempted to pursue further

John’s “request for reimbursement of [Diane’s] income from January through June of

2017, because she was depositing all of her earnings into a separate account,” the trial

court refused to permit that line of inquiry to continue. (See id., pp. 151-153). After alluding
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to placing a value on “the clothes [Diane] washed, and the dishes she did, and the

shopping she did, and all those things that we know stay-at-home parents do for the

household,” the court asserted that John’s request for half of Diane’s earnings was

a waste of your time and my time, and I have never heard of anybody trying

to get half of somebody’s salary for a time when they were together. I mean,

I guess [Diane’s] * * * counsel would agree, that if you want to turn over half

of [John’s] salary, they’ll turn over half of hers for that same period of time.

(Id., p. 152).

{¶ 22} In the final judgment entry, the trial court expressly denied John’s request

for reimbursement from Diane’s earnings during that period. (Doc. #103, Final Judgment

and Decree of Divorce, p. 6). Although acknowledging that Diane’s testimony confirmed

that John “paid the mortgage, groceries, auto loan, utilities, and insurance during these

months,” the court cited to its March 24, 2017 order directing the parties “to continue

paying household bills as customary during the marriage,” and concluded “that it was

customary during the marriage for [John] to pay the household expenses.” (Id.).

{¶ 23} We review property distributions in divorce proceedings for an abuse of

discretion. Payne, 2d Dist. Montgomery No. 27584, 2017-Ohio-8912, at ¶ 6, citing

Loughman v. Loughman, 2d Dist. Montgomery No. 25835, 2014-Ohio-2449, ¶ 22. Under

R.C. 3105.171(A)(3)(a), “* * * wages paid during the marriage are marital property.”

McKenzie v. McKenzie, 2d Dist. Greene No. 2006-CA-34, 2006-Ohio-6841, ¶ 15. To the

extent that deposits into Diane’s individual bank account represented her earnings from

substitute teaching between January and June 2017, while the parties remained in the

same household, those earnings do constitute marital property.
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{¶ 24} That conclusion does not end our analysis, however. On February 16, 2018

– prior to the hearing date – the parties filed certain joint stipulations with the trial court.

(See Doc. #92). Among those, under the heading “Financial Accounts,” was this

stipulation: “Wife has an individual account with Wright-Patterson Credit Union and shall

retain that account free of any claim by Husband.” (Emphasis added.) (Id., p. 3). John

thereby waived “any claim” against Diane’s individual bank account, including her

earnings deposited into that account while the parties still resided together. That alone

warrants overruling John’s third assignment of error.

{¶ 25} Irrespective of that stipulation, the record does not establish that the trial

court abused its discretion in refusing to distribute one-half of Diane’s early 2017 earnings

to John. While the division of marital property generally “shall be equal,” there are

exceptions. R.C. 3105.171(C)(1). “If an equal division of the marital property would be

inequitable, the court shall not divide the marital property equally but instead shall divide

it between the spouses in the manner the court determines equitable.” Id.

{¶ 26} In refusing to award half of Diane’s January through June 2017 earnings to

John, the trial court specified that “[t]he monthly household expenses listed on the parties’

Affidavits exceed [Diane’s] annual income,” and thus concluded that “it was customary

during the marriage for [John] to pay the household expenses.” (Doc. #103, Final

Judgment and Decree of Divorce, p. 6). Given the parties’ income disparity and the trial

court’s additional allusion to the value of the services Diane provided to the household

(see Tr., Vol. I, p. 152), we cannot conclude that the trial court abused its discretion by

determining that allowing Diane to retain all of her nominal earnings from the first half of

2017 would be more equitable than requiring her to share that amount equally with John.
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{¶ 27} John’s third assignment of error is overruled.

Assignment of Error #4 – Attorney’s Fees

{¶ 28} Pursuant to R.C. 3105.73(A), the court in a divorce action “may award all or

part of reasonable attorney’s fees and litigation expenses to either party if the court finds

the award equitable.” In determining whether such an award is equitable, “the court may

consider the parties’ marital assets and income, any award of temporary spousal support,

the conduct of the parties, and any other relevant factors the court deems appropriate.”

Id. An award of attorney’s fees is committed to the sound discretion of the trial court, and

will not be disturbed absent a clear abuse of discretion. Ulliman v. Ulliman, 2d Dist.

Montgomery No. 22560, 2008-Ohio-3876, ¶ 24, citing Layne v. Layne, 83 Ohio App.3d

559, 568, 615 N.E.2d 332 (2d Dist.1992).

{¶ 29} At the hearing, Diane produced copies of her fee agreement with her

attorney and itemized billing statements recording the time expended by her attorney on

this matter. (See Tr., Vol. I, pp. 117-120). She also presented the expert testimony of an

attorney who regularly practices in the Greene County Domestic Relations Court and who

opined that the $275 hourly rate and the total of about $30,000 in fees charged by Diane’s

attorney were reasonable and necessary. (See Tr., Vol. II, pp. 7-11). Moreover, John did

not contest the reasonableness or necessity of the fees charged. (Id., p. 12). 3 His

challenge thus is limited to the requirement that he pay $20,000 of those fees.

{¶ 30} Upon review, we find nothing to suggest that the trial court abused its

3
Given the opportunity to cross-examine Diane’s attorney’s fees expert, John’s attorney
stated, “I don’t think that we have an issue with the amount necessarily of the fees or
[Diane’s attorney]’s hourly rate * * * so much as the equity of requesting a full
reimbursement of fees.”
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discretion by requiring John to pay that portion of Diane’s attorney’s fees. Although Diane

had requested that John cover the full amount of her fees (see Tr., Vol. I, pp. 160-61), the

trial court awarded her only about two-thirds of the requested amount. In so doing, the

court stated, “Taking into account the fees incurred by both parties during the litigation,

the Court finds it reasonable and necessary for [John] to pay $20,000 of [Diane’s] attorney

fees.” (Doc. #103, p. 12). As detailed above, the court elsewhere made findings regarding

the parties’ income disparity, which was a relevant factor for the court to consider in

making a fee award. R.C. 3105.73(A). Moreover, the record reflects that John “switch[ed]

attorneys” during the divorce proceedings (Tr., Vol. I, p .168), “conduct” that the trial court

could have considered as likely to have contributed to an increase in the amount of

Diane’s attorney’s fees. See R.C. 3105.73(A).

{¶ 31} While John contends that the trial court erred by failing to recognize that

“there’s really not much of a discrepancy” in the parties’ relative incomes if John’s child

and spousal support payments to Diane and Diane’s “potential income” are included in

the calculation, we already have determined that the trial court did not err by failing to

consider Diane’s “potential income” for the purpose of calculating spousal and child

support. That determination applies as to this issue as well. Additionally, for purposes of

calculating child support, “Ohio appellate courts have held that spousal support paid from

one party to the other party * * * is not to be considered as gross income,” (Citations

omitted.) Goffinet v. Goffinet, 12th Dist. Butler Nos. CA94-11-197, CA95-02-028, 1996

WL 19287, *2 (Jan. 22, 1996), and a trial court also “may not consider as income the

amount of child support a residential part receives from the nonresidential parent.”

Calvaruso v. Calvaruso, 9th Dist. Summit No. 21392, 2003-Ohio-4906, ¶12. See R.C.
 -15-

3119.23(C) (“[o]ther court-order payments” to be excluded from child support calculation).

Given that spousal support and child support payments are excluded for that purpose, we

cannot say that the trial court abused its discretion by failing to consider such payments

for purposes of awarding attorney’s fees in the parties’ divorce action.

{¶ 32} Lastly, John suggests that the trial court erred by prohibiting him from

inquiring into whether Diane’s attorney’s fees already had been paid, and by whom,

information that John deems relevant to the issue of whether Diane was able to pay her

own fees. We do not agree. The trial court sustained an objection to the relevancy of one

cross-examination question asking Diane to show where “payment to your attorneys [for

fees] were [sic] reflected” (Tr., Vol. I, p. 161). The court did not abuse its discretion in so

ruling.

{¶ 33} John’s fourth assignment of error is overruled.

Assignment of Error #5 – Due Process

{¶ 34} In his final assignment of error, John raises a due process challenge to the

manner in which the trial court conducted the February 18, 2018 hearing. He argues that

the trial court denied him procedural due process by “stymie[ing] [John] from inquiring into

contested issues on a number of occasions,” which he details in his appellate brief.

{¶ 35} “The due process clause of the Fourteenth Amendment requires an

opportunity to be heard before an impartial observer, and provides the right to confront

and cross-examine witnesses prior to the deprivation of life, liberty, or property interest.”

Hall v. Hall, 2017-Ohio-580, 85 N.E.3d 244, ¶ 16 (5th Dist.), citing Shimko v. Lobe, 124

Ohio App.3d 336, 706 N.E.2d 354 (10th Dist.1997). That right attaches in divorce

proceedings. See, e.g., Council v. Council, 2d Dist. Montgomery No. 23514, 2010-Ohio-
 -16-

3445, ¶ 29. A party may be denied due process when the parties are “given different

degrees of latitude to develop testimony * * *” regarding the matters at issue. Hall at ¶ 18,

citing Cohen v. Cohen, 5th Dist. Fairfield No. 99CA52, 2001 WL 61081 (Jan. 22, 2001).

{¶ 36} We find no merit to the due process challenge. “Trial courts are given great

deference in controlling their dockets.” Matthewson v. Matthewson, 2d Dist. Greene No.

05-CA-035, 2007-Ohio-574, ¶ 26, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d

1078 (1981). Indeed, Evid.R. 611(A) expressly authorizes trial courts to “exercise

reasonable control over the mode * * * of interrogating witnesses and presenting evidence

so as to * * * avoid needless consumption of time.” Id.

{¶ 37} “[I]t is well-established that the admission or exclusion of relevant evidence

rests within the trial court’s sound discretion.” Heath v. Heath, 12th Dist. Fayette No.

CA2016-08-011, 2017-Ohio-5506, ¶ 24, citing Fox v. Fox, 12th Dist. Clermont No.

CA2013-08-066, 2014-Ohio-1887, ¶ 13. A trial court does not err by excluding irrelevant

evidence, nor may an error be predicated on the exclusion of evidence that the proponent

failed to proffer. See Day, Ketterer, Raley, Wright & Rybolt, Ltd. v. Hamrick, 5th Dist. Stark

No. 2002CA0043, 2002-Ohio-5493, ¶ 29. There also is no error in a trial court’s exclusion

of evidence that is “merely cumulative.” See Ross v. Ross, 4th Dist. Jackson No. 507,

1985 WL 9387, *2 (Jul. 10, 1985). Moreover, to constitute error, the exclusion of evidence

must affect “a substantial right of the party.” Heath at ¶ 26, citing Evid.R. 103(A)(2); see

also First Natl. Bank of Pandora v. Plott, 6th Dist. Wood No. WD-95-096, 1996 WL

465396, at *7 (Aug. 16, 1996) (“appellant’s due process rights were not violated [where]

she suffered no prejudice from the exclusion of evidence * * *”).

{¶ 38} None of the examples cited by John constitute an abuse of the trial court’s
 -17-

discretion regarding the admission of evidence. Given our determinations above, the trial

court did not err by refusing to allow John to adduce evidence about earnings deposited

into Diane’s bank account that John had stipulated was to be treated as her separate

property, or by refusing to allow John to question Diane about payment of her attorney’s

fees. Absent a proffer of evidence regarding Diane’s alleged conduct during a settlement

conference, we also cannot conclude on this record that the court erred by excluding such

evidence. See Day, Ketterer, Raley, Wright & Rybolt, Ltd. at ¶ 29. While the trial court

rebuffed John’s attempt to offer his own testimony on the topic of Diane’s alleged

“underemployment,” the record already contained the testimony of John’s expert witness,

as well as his counsel’s cross-examination of Diane. Any testimony from John on that

subject would have been redundant, and excluding it was not an abuse of discretion.

Notwithstanding the trial court’s acknowledgment about “taking over” questioning of

witnesses (see Tr., Vol. I, p. 203), the trial did not so curtail John’s ability to present

evidence as to create an incomplete record, to John’s prejudice. And, again, without a

proffer, we cannot conclude on the record that John was prejudiced.

{¶ 39} John’s fifth assignment of error is overruled.

Conclusion

{¶ 40} The judgment of the trial court will be affirmed.

.............

WELBAUM, P.J. and TUCKER, J., concur.

Copies sent to:

Michelle M. Maciorowski
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Keri E. Farley
Hon. Steven L. Hurley