Cincinnati, Ohio - Divorce lawyer represented Defendant-appellant with a custody-modification hearing.

Alungbe and plaintiff-appellee Elizabeth Ijakoli were married in 2009

and subsequently had two children together. In 2017, Ijakoli filed for divorce. Two

years later, the trial court issued a divorce decree and designated Ijakoli as the

residential parent of their children. In the decree, Alungbe was granted weekly

parenting time. The parties filed numerous postdecree motions to enforce and modify

the decree, to modify parenting time, for psychological testing, and for contempt.

While Alungbe periodically had legal representation, he was pro se at all times relevant

to this appeal.

{¶3} In August 2020, Alungbe filed a postdecree motion to modify the

custody order and alleged that their children were being neglected. The following

week, Ijakoli filed postdecree motions to hold Alungbe in contempt of the decree and

to modify parenting time. Days later, Alungbe moved for an expedited hearing on a

motion to modify the "parenting order to grant Defendant full custody” of the children.

{¶4} Additionally, Alungbe requested the appointment of a guardian ad litem

("GAL”) for the children. The following month, the magistrate found that a GAL was

necessary under "Local Rule Title X” and appointed one for the children. The

magistrate tasked the GAL with investigating and reporting to the court the best

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interests of the children under Sup.R. 48(D). In his investigation, the GAL was

instructed to interview school personnel and medical providers, among others.

{¶5} In February 2021, Alungbe moved the court to terminate the GAL. In

March, Alungbe "e-filed” approximately 1,000 pages of documents. In response,

Ijakoli moved to strike his filings under Civ.R. 12(F). In April, the magistrate held a

hearing and denied Alungbe's motion to terminate the GAL. The magistrate informed

Alungbe that his filings were "really exhibits” and he "shouldn't be filing exhibits with

the Court.” Rather, the magistrate informed him that the filings were "something that

you use during your hearing,” and struck his filings from the docket.

{¶6} In June 2021, Alungbe subpoenaed the GAL to "produce your whole file,

including all notes, documents and memoranda reviewed and used.” Weeks later, he

filed a motion to compel the GAL "to produce his file, reports, letters, documents, and

notes used in the preparation of his report filed in this matter.” In response, the GAL

moved to quash the subpoena and argued that Local R. 10.9 of the Court of Common

Pleas of Hamilton County, Domestic Relations Division ("Loc.R. 10.9”) and former

Sup.R. 48 prohibited the disclosure of the privileged information requested and

redaction "would be unduly burdensome to provide.”

{¶7} The trial court held a hearing on Alungbe's motion to compel the GAL

to produce his records, the GAL's motion to quash Alungbe's subpoena, and the issue

of a change in circumstances relevant to Alungbe's motion for a custody modification.

After Alungbe and the GAL presented arguments regarding the GAL's records, the trial

court denied Alungbe's motion to compel and granted the GAL's motion to quash

Alungbe's subpoena.

{¶8} Next, the trial court considered whether there was a change of

circumstances warranting custody modification. Ijakoli informed the trial court that

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Alungbe sent "approximately a thousand pages of documents at 3 p.m. yesterday.” The

trial court told Alungbe this contravened the "civil rules of evidence.”

{¶9} Alungbe argued that medical, educational, and emotional neglect of the

children constituted a change of circumstances warranting a custody modification.

With Ijakoli on the stand, Alungbe questioned her about a range of topics, including

the children's supervision, education, and medical needs. In the midst of his

questioning, Alungbe asked the court for permission to introduce his evidence into the

record. The trial court refused and answered, "[I]f you're going to try to lay a thousand

pages of documents here that counsel didn't receive until last night at 5:00, I'm not

going to allow it.”

{¶10} Alungbe called the GAL to the stand and questioned the veracity of the

GAL's report. Alungbe requested permission to present evidence to refute the report.

The trial court denied his request and instructed him to "question the guardian ad

litem on his findings in his report.” Later, Alungbe asked the GAL whether he knew

that Alungbe's daughter "was not on video Zoom for a month?” The GAL was unaware.

Alungbe asked to play a video of the class, explaining

There are points that [the GAL] raised here that are not true. And if I

can now refer to the exhibit, you know, if we can have it admitted into

evidence, and I can refer to that and call your attention to that.

It is very, very hard because I have to say this without then showing

anything, you know.

If I can refer to this exhibit so you see things. You know, it is hard for

me to talk, oh, you want me to do that in my testimony when I testify.

Because it's hard.

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{¶11} Alungbe informed the court that the video showed his daughter unable

to participate in class because her video and camera were malfunctioning. The GAL

and Ijakoli objected. The trial court denied his request because it was "not following

how this is a change of circumstance.”

{¶12} After some dialogue, the trial court confirmed that Alungbe sought to

establish educational neglect. In response, Alungbe told the trial court that he had

evidence of the GAL's inconsistency and bias "documented in the exhibits,” and asked

to "go through them one by one, [to] demonstrate that.” The trial court refused:

No. We're not going to go through one by one because this—I repeat

myself again. This hearing was set for a one-hour hearing. And I

recognize that we got—we got started about 20 minutes late. But it's now

after 11 a.m. And so far I've heard nothing that supports a change of

circumstance.

{¶13} Finally, Alungbe testified about his children's care, education, and

health. At the conclusion of the hearing, the trial court found that Alungbe "failed to

establish a change of circumstance as required by the statute,” and denied his motion

to modify custody.

{¶14} The trial court entered judgment granting the GAL's motion to quash

Alungbe's subpoena and denying modification because Alungbe "did not provide any

convincing evidence that the children are being neglected in any manner.” In its entry,

the trial court scheduled a "status conference on the remaining motions.”

{¶15} Alungbe appeals, challenging the trial court's evidentiary decisions in

two assignments of error.

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II. Law and Analysis

{¶16} Before reaching the merits of the assignments of error, Ijakoli maintains

that the trial court's decision is not a final appealable order under R.C. 2505.02. She

argues that the trial court's decision did not determine the action in light of unresolved

parenting-time motions pending before the trial court. We agree that the decision

contemplated further action on the issue of parenting time.

{¶17} In Ohio, appellate courts are empowered to review final orders or

judgments of a trial court. Ohio Constitution, Article IV, Section 3(B)(2). Generally, an

order or judgment is final if it falls into one of the categories of final judgments

identified by R.C. 2505.02(B). Cornell v. Shain, 1st Dist. Hamilton No. C-190722,

2021-Ohio-2094, ¶ 21. Our inquiry begins with the statutory text.

{¶18} Ijakoli's argument focuses on R.C. 2505.02(B)(1), which provides that

an order is final if it "affects a substantial right in an action that in effect determines

the action and prevents a judgment.” Ijakoli maintains that, in cases involving parental

rights and responsibilities, a trial court's order is final only when the order resolves

every pending claim. She relies on Rice v. Lewis, 4th Dist. Scioto No. 11CA3451, 2012-

Ohio-2588. In Rice, the trial court's custody order was not a final, appealable order

when the order failed to establish parenting time for the nonresidential parent. Rice

at ¶ 12. Relying on Civ.R. 54(B), the court dismissed the appeal because "[a] judgment

that leaves issues unresolved and contemplates that further action must be taken is

not a final appealable order.” Id. at ¶ 14, quoting Bell v. Horton, 142 Ohio App.3d 694,

696, 756 N.E.2d 1241 (4th Dist.2001), citing Chef Italiano Corp. v. Kent State Univ.,

44 Ohio St.3d 86, 541 N.E.2d 64 (1989).

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{¶19} But we fail to see how Rice, which involved an appeal from an initial

order determining custody, controls our analysis of the trial court's post-decree

judgment denying modification of custody. While we agree that the order is not final

under R.C. 2505.02(B)(1), we must consider the statute's six remaining categories of

final orders. We find that R.C. 2505.02(B)(2) determines finality in this case. And we

continue to recognize the open questions surrounding the application of Civ.R. 54(B)

to postjudgment motions under R.C. 2505.02(B)(2). See Nichols v. Durrani, 1st Dist.

Hamilton No. C-210224, 2021-Ohio-2973, ¶ 3; see also Quesinberry v. Quesinberry,

2021-Ohio-4680, 185 N.E.3d 1136, ¶ 33 (2d Dist.).

{¶20} Under R.C. 2505.02(B)(2), an order is final if it "affects a substantial

right made in a special proceeding or upon a summary application in an action after

judgment.” The trial court's order was final, and we have jurisdiction, if the order 1.)

was made in a special proceeding, 2.) affected a substantial right, and 3.) Alungbe

"would not be able to effectively protect [his] substantial right without immediate

review.” Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d

1239, ¶ 11.

{¶21} A "special proceeding” is a proceeding "specially created by statute” that

did not exist at common law prior to 1853. R.C. 2505.02(A)(2). Here, the trial court

denied Alungbe modification of the custody order in the divorce decree. As we have

explained, "[I]t is beyond cavil that custody proceedings brought in juvenile court did

not exist at common law but were created by statute.” In re E.N., 1st Dist. Hamilton

No. C-170272, 2018-Ohio-3919, ¶ 16. Likewise, divorce proceedings are statutory

creations that did not exist at common law. See Thomasson at ¶ 12, citing WilhelmKissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 6.

Therefore, the decision was made in a special proceeding.

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{¶22} A substantial right is "a right that the United States Constitution, the

Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person

to enforce or protect.” R.C. 2505.02(A)(1). Parental rights, including the "fundamental

right of parents to make decisions concerning the care, custody, and control of their

children,” are " 'essential' and 'basic' civil right[s].” In re E.N. at ¶ 17, quoting Troxel

v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois,

405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Thus, the trial court's decision

involved a substantial right.

{¶23} We hold that the trial court's decision affected Alungbe's substantial

rights. A decision affects a substantial right " 'if an immediate appeal is necessary to

protect the right effectively.' ” Crown Servs. v. Miami Valley Paper Tube Co., 162 Ohio

St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, quoting Wilhelm-Kissinger at ¶ 7,

citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993). We find

an immediate appeal is necessary considering the substantial right at issue and nature

of the case. Indeed, it would be "inequitable and impracticable” to require Alungbe to

postpone his appeal until the end of the postdecree litigation in this case. See

Quesinberry, 2021-Ohio-4680, 185 N.E.3d 1136, at ¶ 29 ("Subjecting a party's postjudgment right to appeal to the question of whether the other party has sought relief

in the trial court will inevitably cause delay and invite gamesmanship.”).

{¶24} Ijakoli argues that the absence of a Civ.R. 54(B) certification by the trial

court limits our ability to review the decision. But as stated, "[t]he applicability of

Civ.R. 54(B) to postjudgment motions under R.C. 2505.02(B)(2) is a matter of some

dispute among Ohio courts.” Nichols, 1st Dist. Hamilton No. C-210224, 2021-Ohio2973, at ¶ 3 (collecting cases). And "because the trial court's entries affect a substantial

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right made in a special proceeding, App.R. 4(B)(5) permits the appeal from the trial

court's partial judgment.” In re S. Children, 1st Dist. Hamilton Nos. C-190287, C190299, C-190313, C-190320, C-190332 and C-190333, 2020-Ohio-3354, ¶ 14.

Therefore, the trial court's decision was a final, appealable order.

Exclusion of Evidence

{¶25} In his first assignment of error, Alungbe maintains that the trial court

erred when it excluded his 1,197 pages of evidence of alleged neglect. It appears that

Alungbe attempted to submit approximately 1,000 pages of exhibits to this court. But

we cannot consider evidence that was not made a part of the record of the proceedings

below. State v. Zhovner, 2013-Ohio-749, 987 N.E.2d 333, ¶ 11 (3d Dist.), citing Deitz

v. Deitz, 3d Dist. Union No. 14-11-06, 2012-Ohio-130, ¶ 8.

{¶26} We recognize that a trial court has broad discretion over the admission

or exclusion of evidence, and to reverse a decision to exclude evidence we must find

an abuse of discretion and proof of material prejudice. Gauthier v. Gauthier, 1st Dist.

Hamilton No. C-210239, 2022-Ohio-541, ¶ 24, citing Hayes v. Durrani, 1st Dist.

Hamilton No. C-190617, 2021-Ohio-725, ¶ 13. A trial court abuses its discretion when

it " 'exercise[es] its judgment, in an unwarranted way, in regard to a matter over which

it has discretionary authority.' ” State v. Austin, 1st Dist. Hamilton Nos. C-210140 and

C-210141, 2021-Ohio-3608, ¶ 5, quoting Johnson v. Abdullah, 166 Ohio St.3d 427,

2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In other words, an abuse of discretion "implies

that the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is made

arbitrarily when "made without consideration of or regard for facts [or]

circumstances.” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶

12, quoting Black's Law Dictionary 96 (5th Ed.1979).

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{¶27} Following an extensive review of the record, we hold that the trial court's

blanket exclusion of Alungbe's evidence, without any substantive consideration of the

contents within the evidence, was an abuse of discretion. At several points during the

hearing, Alungbe asked to present his evidence as proof of medical and educational

neglect. In every instance, the trial court excluded the evidence due to the sheer

volume of the evidence offered by Alungbe and fairness to Ijakoli. Alungbe asked to

"present [his] evidence so it can be relevant to [the change of circumstance] as I go on”

or "introduce exhibits as we move forward?” But the trial court refused as the case was

scheduled "originally here for a one-hour hearing,” and the hearing was approaching

the one-hour mark. The trial court continued, "if you're going to try to lay a thousand

pages of documents here that counsel didn't receive until last night at 5:00, I'm not

going to allow it.”

{¶28} Rather than inspect the evidence, the trial court excluded all of

Alungbe's evidence. While the exclusion rested on principles of fairness to the

opposing party, the record suggests that Alungbe attempted to furnish his evidence

months before the June hearing. Furthermore, the trial court failed to issue a casemanagement order establishing a deadline for Alungbe to turn over his evidence. We

recognize the trial court's interest in its "ability to manage its docket so as to perform

its work efficiently and diligently.” In re M/W Children, 1st Dist. Hamilton No. C180623, 2019-Ohio-948, ¶ 33, citing In re E.A., 1st Dist. Hamilton No. C-130041,

2014-Ohio-280, ¶ 8. But under these circumstances, an indiscriminate and wholesale

exclusion of a party's evidence constitutes an arbitrary exercise of discretion.

Therefore, we find the trial court abused its discretion when it excluded Alungbe's

evidence.

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{¶29} Yet, to reverse the trial court's decision, we must find that the trial

court's abuse of discretion prejudiced Alungbe—that the exclusion affected a

substantial right. See Evid.R. 103(A). In other words, the exclusion must have

"affected the final determination of the proceeding.” Buckmaster v. Buckmaster, 4th

Dist. Highland No. 13CA13, 2014-Ohio-793, ¶ 23, citing Campbell v. Johnson, 87 Ohio

App.3d 543, 551, 622 N.E.2d 717 (2d Dist.1993), citing Smith v. Flesher, 12 Ohio St.2d

107, 233 N.E.2d 137 (1967), and Schmelzer v. Farrar, 40 Ohio App.2d 440, 320 N.E.2d

707 (10th Dist.1974).

{¶30} While the trial court excluded Alungbe's evidence, it directed Alungbe

to question the witnesses and allowed him to refer to his evidence throughout his

questioning. Indeed, the trial court informed Alungbe about the probative value of

"live testimony of the witness here in the flesh.” Through his questioning, Alungbe

successfully established that, during the pandemic, the children were left

unsupervised at home while their mother went to buy groceries and their performance

in school declined. Likewise, he established that their son was not taken to see a

medical doctor for a sprained ankle. Further, Alungbe was able to challenge the

veracity of the GAL's report's conclusion that there was no change in circumstances

warranting a change of custody. Despite the trial court excluding his evidence, Alungbe

was able to present his case through testimonial evidence. Therefore, we find that the

exclusion of his evidence caused no material prejudice.

{¶31} Alungbe maintains that the trial court's exclusion of his evidence

violated his right to due process. Both the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and the Due Course of Law provision of

Article I, Section 16 of the Ohio Constitution, guarantee procedural due process, " 'that

an individual be given an opportunity to be heard at a meaningful time and in a

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meaningful manner.' ” In re Raheem L., 2013-Ohio-2423, 993 N.E.2d 455, ¶ 6 (1st

Dist.), quoting Morrison v. Warren, 375 F.3d 468, 475 (6th Cir.2004), citing Mathews

v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Due Process

Clause prevents "the States denying potential litigants use of established adjudicatory

procedures, when such an action would be 'the equivalent of denying them an

opportunity to be heard upon their claimed [rights].' ” Logan v. Zimmerman Brush

Co., 455 U.S. 422, 429-430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), quoting Boddie v.

Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). An opportunity to

be heard includes an opportunity to present evidence. See State v. Day, 1st Dist.

Hamilton No. C-210503, 2022-Ohio-1954, ¶ 15.

{¶32} For instance, a trial court violated a party's right to procedural due

process when the court refused to allow the party to call witnesses or "present[] any

evidence in support of her case.” In re A.P., 3d Dist. Logan Nos. 8-20-17, 8-20-18, 8-

20-19, 8-20-20, 8-20-21, 8-20-22, 8-20-23, 8-20-24 and 8-20-25, 2020-Ohio-5131, ¶

17. In contrast, a party allowed to present "testimony and evidence” was given a

meaningful opportunity to be heard and afforded due process. In re C.O., 8th Dist.

Cuyahoga Nos. 99334 and 99335, 2013-Ohio-5239, ¶ 7.

{¶33} As discussed, Alungbe was able to present testimonial evidence during

the hearing before the trial court, and therefore, was afforded a meaningful

opportunity to be heard. As a result, we overrule Alungbe's first assignment of error.

Access to the Guardian Ad Litem's Records

{¶34} In his second assignment of error, Alungbe argues that the trial court

erred when it denied his motion to compel the production of the GAL's records. We

review a trial court's decision regarding discovery issues for an abuse of discretion.

Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 13

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(1st Dist.), citing State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d

198 (1998).

{¶35} Under Loc.R. 10.9(M) of the Court of Common Pleas of Hamilton

County, Domestic Relations Division, a GAL "shall make no disclosures about the case

or the investigation except in reports to the Court or as necessary to perform the duties

of a guardian ad litem.” Likewise, former Sup.R. 48(D)(15)1 prohibited the GAL from

making disclosures about the case or investigation. Under these rules, the trial court's

decision was proper. The court, however, had the authority to "order disclosure of or

access to the information that addresses the need to challenge the truth of the

information received from the confidential source.” Sup.R. 48.03(F).

{¶36} Alungbe's need for the GAL's investigation file is unclear. Alungbe

received a copy of the GAL report, which included a list of individuals with whom the

GAL spoke during his investigation. At the hearing, Alungbe informed the court that

access to the GAL's file was necessary to challenge the statement in the report that

Alungbe "forced the doctor to give [him] a report to justify [his] position” of concern

about the children's care. Later, Alungbe was able to question the GAL about his

report, undercutting his need to access the information obtained by the GAL from

confidential sources.

{¶37} Considering Alungbe's stated need for the GAL records and ability to

question the GAL about the basis of his report, the trial court's decision to deny

Alungbe's motion to compel was reasonable. The trial court's decision was not an

abuse of discretion. We overrule Alungbe's second assignment of error.

The trial court arbitrarily excluded Alungbe’s evidence at the hearing.

While this was an abuse of discretion, Alungbe suffered no prejudice. Further, the trial court properly denied Alungbe’s motion to compel the production of the GAL files. We therefore overrule Alungbe’s two assignments of error and affirm the trial court’s judgment.