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IN THE
SUPREME COURT OF OHIO 12-1^'7l LARRY ELLIOT KLAYMAN NO.
Petitioner-Appellant, On appeal from the Cuyahoga County Court of Appeals, Eight Appellate vs. District
STEPHANIE ANN LUCK Court of Appeals Case Nos. CA-097074 and CA-097075 Respondent- Appellee.
MEMORANDUM IN SUPPORT OF NRISDICTION
Suzanne M. Jambe, Esq. LARRY KLAYMAN . 1900 East Ninth Street 2020 Pennsylvania Ave, NW, Suite 800 3200 National City Center Washington, D.C. 20006 Cleveland, Ohio 44114-3486
Attorneyfor Appellee Stephanie Ann Luck Pro Se
.... CC^ ^ C ^^12 CLERK OF COURT TABLE OF CONTENTS
Explanafion Of Why This Case Is A Case Of Public Or Great General Interest Or Why A Substantial Constitutional Question Is Involved ...... 1
Statement Of The Case And Facts ...... 5
Argument In Support Of Propositions Of Law ...... 7
Proposition of Law No. I. A Contempt Action Filed To Enforce Child Support Payments Is An "Enforcement" Action And Is Subject To The Choice Of Law Provision Agreed Upon In A Consent Marital Agreement ...... 7
Proposition of Law No. II Blatant And Repeated Bias And Prejudice By A Magistrate And Judge In A Child Custody Proceeding Is A Violation Of The Due Process Rights Of The One Against Whom The Bias Is Displayed ...... 9
Proposition of Law No. III A Magistrate And Judge Cannot Make A Decision To Take A Person's Child Away Based On Only His Own Inferences When The Evidence On The Record Leads To No Such Conclusion ...... 12
Proposition of Law No. IV A Magistrate And Judge Cannot Take The Place Of An Expert Witness And Perform Psychological Evaluations Of Children During A Case In Which He Is Presiding ...... 12
Proposition of Law No. V The Wrongful Admission Of Records Into Evidence Does Not Alter The Clear Prohibition Set Forth In Ohio Rev. Code § 3109.04(E)(1)(A) And These Records Must Be Stricken From The Record ...... 14
Proposition of Law No. VI The Magistrate And Judge Wrongly Dismissed The Action When Due To His Financial Difficulties And Other Factors, Appellant Could Not Be Present On The Final Date Of The Trial Even Though He Had Requested A Continuance ...... 14
Proposition of Law No. VII Since This Case Must Be Remanded For Retrial, The Punitive And Prejudicial Award Of Attorney's Fees And Costs Must Also Be Reviewed And Reversed At This Time ...... 15
Conclusion ...... 15
Certificate Of Service ...... 16
App endix ...... 17
_ EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR WHY A SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED
APPELLANT'S DUE PROCESS RIGHTS HAVE BEEN VIOLATED
"Justice will not be served until those who are unaffected are as outraged as those who are." - Benjamin Franklin
Appellant Larry Klayman has faced deliberate and disgraceful acts of judicial bias and misconduct, in a Cleveland family court that regrettably has been publicly criticized for its routine "dysfunction." This deprived him of his right of due process under the law.
Outrageously, Appellant was ridiculed for his religious beliefs and was referred to as"evil" by the very magistrate and who decided to effectively take his children away from him. This clear and distinct bias was done in violation of appellant's right to due process under the Fourteenth
Amendment to the U.S. Constitution and Section 1 of Article Sixteen of the Ohio Constitution.
The Ohio courts recognize that "a fair trial in an impartial tribunal is a basic requirement of due process.i1 Cooke v. United Dairy Farmers, Inc. (2006), 2006 Ohio 4365 (Ohio Ct. App.,
Franklin County Aug. 24, 2006) citing In re Murchison (1955), 349 U.S. 133, 136. Ohio's legal
standard for judicial bias is clear, with a relatively low threshold for recusal or disqualification.
In the landmark case of State v. LaMar (2002), 95 Ohio St. 3d 181, 189, the Court held that
"Judicial bias has been described as a`hostile feeling or spirit of ill will or undue friendship or
fauoritism toward one of the lifigants or his attorney, with the formafion of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will
be governed by the law and the facts."' As set forth below, the magistrate's and the trial court's
1 As the U.S. Supreme Court has held, in Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), the Due Process clause of the Fourteenth Amendment requires a judge to be recused not only when actual bias has been demonstrated or when the judge has an economic interest in the outcome of the case, but also when "extreme facts" create a"probability of bias." These two situations apply in this case. (Emphasis added). ,^
outrageous and prejudicial behavior in this case far exceeds this relatively low threshold for his
disqualification.
The magistrate's 93 page opinion ridiculed Appellant and called him "evil" along with
several other disparaging remarks and personal attacks. And the magistrate, Jewish like Mr.
Klayman, mocked him for being messianic. These among many other outrageous statements
were brought to the Court of Appeals of Ohio, Eighth Appellate District ("appellate court")'s
attention and were ignored. There can be no clearer example of actual bias. This bias and
prejudice demonstrates the need for a new and impartial trial.
APPELLANT'S RIGHT TO RAISE HIS CHILDREN HAS BEEN VIOLATED
This case involves Appellant' right to raise his children. Appellee in effect kidnapped
Appellant's children from him and he has not been able to see or talk with them in over five
years. Appellant's right to raise his children has been essentially ignored while he has suffered
years of biased court rulings based on false accusations of sexual abuse.
As the Supreme Court of Ohio has frequently found:
"The United States Supreme Court has stated that the right to raise one's children is an"essential" and "basic civil right." See Standey v. Illinois (1972), 405 U.S. 645, 651; Meyer v. Nebraska (1923), 262 U.S. 390, 399. Parents have a "fundamental liberry interest" in the care, custody, and management of the child. Santosky v. Kramer (1982), 455 U.S. 745, 753. Further, it has been deemed "cardinal" that the custody, care and nurhxre of the child reside, first, in the parents. H.L. v. Matheson (1981), 450 U.S. 398, 410; Quidloin v. Walcott (1978), 434 U.S. 246, 255; Stanley, supra, at 651; Prince v. Massachusetts (1944), 321 U.S. 158, 166.
"Similarly, this court has long stated that parents who are suitable persons haue a"paramount" right to the custody of their minor children. In re Perales (1977), 52 Ohio St. 2d 89, 97, 6 O.O. 3d 293, 297, 369 N.E. 2d 1047, 1051-1052; Clark v. Bayer (1877), 32 Ohio St. 299, 310, Numerous reported decisions demonstrate that this principle has become the foundation for child custody cases faced by lower courts. See, e.g., In re Fassinger (1974), 43 Ohio App. 2d 89, 91-92, 72 O.O. 2d 292, 294, 334 N.E. 2d 5, 8; In re Massner (1969), 19 Ohio App. 2d 33, 39-40, 48 O.O. 2d 31, 35, 249 N.E. 2d 532, 536; In re
2 DeYore (1959), 111 Ohio App. 1, 3, 13 O.O. 2d 376, 377, 167 N.E. 2d 381, 382; In re Duffy (1946), 78 Ohio App. 16, 18, 33 O.O. 381, 382, 68 N.E. 2d 842, 843-844; Ex Parte Combs (C.P. 1958), 77 Ohio Law Abs. 458, 460, 150 N.E. 2d 505, 507; In re Zerick (J.C. 1955), 74 Ohio Law Abs. 525, 530, 57 O.O. 331, 333, 129 N.E. 2d 661, 665; In re Routa (P.C. 1955), 71 Ohio Law Abs. 574, 576, 2 O.O. 2d 80, 130 N.E. 2d 453, 454; In re Swentosky (P.C. 1937), 25 Ohio Law Abs. 601, 602, 10 O.O. 150, 151, 1 Ohio Supp. 37, 38."
In re Murray (1990), 52 Ohio St. 3d 155, 157. This long-established black letter case law
demonstrates precisely why Appellant is entitled to review by this Court as a matter of right, as
well as the Court's discretion. Appellant's fundamental and basic right to raise his children must
be restored. 2
EPIDEMIC OF FALSE SEXUAL ABUSE ACCUSATIONS IN THIS STATE HAVE PLAGUED THE COURT SYSTEM AND MUST BE ADDRESSED
This lawsuit involves manufactured allegations of child sexual abuse, which types of
false allegations have become epidemic in Ohio family courts. As the Court of Appeals of Ohio,
Sixth Appellate District found, "the introduction of sexual abuse charges into bitterly contested custody actions seems to have become epidemic. Yet, as one expert in this case testified, such allegations are unsubstantiated in as many as eight of ten times." Kohlman v.
Kohlman, (1993) Ohio App. LEXIS 4481 at 16 (Emphasis added). These allegations create irreparable hann, even when they are later proven false.3
In this case specifically, the ex wife of Appellant manufactured this claim three days after appellant filed for custody, and the trial family court then refused to take action to enforce
2 Irnportantly, the trial court and appellate court's rulings, cry out for review by this court as they tanvsh the integrity off not just the entire family law system, but the integrity of the court system and judiciary in general. 3 See Jake Morphonios, The Nuclear Option: False Child Sexual Abuse Allegations in Custody Disputes (Febniary 18, 2008), http://www.nolanchart.com/article2788-the-nuclear-opfion-false- child-sexual-abuse-allegations-in-custody-disputes.html ("even when you are totally exonerated - your life is never the same personally, professionally, and you're typically ostracized from your own community") visitation for nearly five years, as the former spouse effectively kidnapped the children by cutting off all contact with Appellant - unilaterally and blatantly violating the visitation provisions of the consent marital agreement. Despite this unilateral act of cutting off appellant from his children, the trial court continued to enforce the payment of child support, while it failed to enforce visitation.
Further, the final judgment entries of the trial court show such a degree of bias and prejudice toward Appellant such that the statements of the trial court are severely undermine justice, but the appearance of justice in the entire Ohio court system. This severely lowers the confidence of citizens, as well as undermines respect for and the authority of the courts and the judiciary.
Finally, the final judgment entries of the trial court and appellate court are so blatantly wrong, based on the appeals court's own reasoning, that they manifest not just this bias and prejudice and but also an intentional flouting of the law, which arises to the level of judicial misconduct 4 The trial court and the appellate court also failed to consider any of the tes6mony of third party witnesses admitted into the record on behalf of Appellant that bears on Appellant's parenting - denying appellant due process of law and compromising his parenting rights and the rights of the children. This court has a public and great general interest to insure that its lower courts obey the law and do not flout it.
Thus, this issue is one of public and great general interest and it is essential for the highest court in Ohio to review this case. This Court can address problems with the family law system and clean up the insidious "dysfunction" that has been damaging the lives of the many who have been forced to go through it.
4 See Cynthia Gray, The Line Between Legal En•or and Judicial Misconduct: Balancing Judicial Independence and Accountability, 32 Hofstra L. Rev. 1245 (2004).
4 STATEMENT OF THE CASE AND OF THE FACTS
Appellant's children have been effectively kidnapped from himfor over fave years.
Appellant was falsely accused of sexually abusing his own children in an effort by his former spouse to throw a monkey wrench into a custody proceeding that Mr. Klayman had filed and create a false pretext for him not to see or even talk to his children. There was no evidence -- none -- that Appellant had in any way inappropriately touched his children. The Cleveland
Department of Child and Family Services ("DCF") investigated the allegafions and found that they were "unsubstantiated." Klayman v. Luck, 2012-Ohio-3354, ¶25. And, the sheriff and district attorney, who received an automafic referral from DCF, found similarly after a thorough investigation. Appellant's Initial Brief at Exhibit 23. Appellant Klayman was denied access to his children unilaterally without court order, up to and including the date of the judgment entry entered by the trial court, which judgment entry is under review.s
To understand the injustice that has occurred, one need only read the magistrate's decision of June 9, 2010 ("Magistrate Decision"). This decision shows nothing short of a vicious vendetta against Appellant, a public figure, and was obviously intended to destroy his reputation.
It was written for public consumption (and is on the internet) and is filled with invective and disdain - if not hatred -- for the Appellant, mocking and denigrating him every step of the way in an unprecedented 93 page single spaced "assassinafion." It is so filled with apparent rank bias
5 Unforhmately, the dysfunction of the lower family court is not unique in this case, but has become epidemic. Indeed, the dysfunction of the lower family court has been the subject of numerous articles in the Cleveland Plain Dealer, admonishing the lower family court for its incompetence and lack of diligent, affirmative and intellectually honest rulings to protect the litigants from abuse by manipulative spouses and their divorce lawyers. See e.g, Kroll, John, Divorces drag on in Cuyahoga County's courts (March 24, 2008), http://blog.cleveland.com/metro/2008/03/divorces_drag_on_in_cuyahoga_c.html; Editorial, Visitation rights Must Be Enforced (July 17, 2010), http://www.cleveland.com/opinion/index.ssf/2010/07/visitation_rights_must_be_enfo.html
5 and prejudice that the tenor and letter of the decision itself is sufficient to warrant his
disqualification, as Appellant had timely moved for prior to the magistrate's decision being
issued. One can only conclude that there is something about Appellant's dual Jewish-Christian
religiosity, public status, perhaps his history of fighting for conservative causes, or something
else, including the motion to have the magistrate disqualified for his conduct at trial, which was
filed before the decision was issued, that upset him.6
The trial judge did nothing to eliminate the bias and prejudice shown by the magistrate,
simply rubber-stamped the magistrate's biased decision, and thus the prejudice became her own.
Klayman v. Luck, 2012-Ohio-3354, ¶21. Appellant took an appeal to the appellate court hoping that this injustice would fmally be righted. Yet on July 26, 2012 a three judge panel composed of Judge Melody Stewart, Judge Kenneth Rocco, and Judge Mary Boyle issued a judgment entry in the above styled appeal, which contained gross errors of law. Id. This judgment did nothing to remedy the previous injustice that Appellant had faced as a result of the magistrate. Thinking that the panel would itself recognize its errors, Appellant filed his Application for Rehearing on
August 6, 2012, only to have the same three judge panel rubber stamp its initial judgment entry without any explanation on September 5, 2012. Appellant then filed an Application for En Banc
Rehearing on September 14, 2012 only to have it summarily denied as well on September 18,
6 Indeed, the pediatrician who referred the false sexual allegation of Appellee to the DCF inade a point of telling the intake person at DCF that Appellant had sued President Bill Clinton and represented his girlfriend Gennifer Flowers. Magistrate Decision at 14. So it is not inconceivable that the magistrate felt the same bias and prejudice. In this regazd, as discussed below, the magistrate not only threw out all of Appellant's testimony, but failed to even address the direct testimony of third party witnesses like Sandra Cobas (PX 108A and B), Pino Cignarella (PX 107), and Bob Witbrott (TR V. III pp. 69-84), all of whom testified as to Appellant's efforts to be a loving father, the children's excellent interaction with him before the custody petifion was filed, false sexual abuse allegations, his frequent travel to Cleveland to be with his children, and related custody issues. That the magistrate would exclude all of this favorable testimony on behalf of the Appellant, while branding Appellant a liaz on all counts, more than shows his bias and prejudice.
6 2012. It is therefore clear that the three judge panel dug in its heals and failed to recognize the
obvious, thus resulting in a manifest injustice.
Appellant now files this appeal with this Court in order to seek justice and reverse the
gross legal and ethical errors that have plagued this lawsuit from the beginning.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I- The appellate court conceded that the choice of law provision
of the consent marital agreement governs. Klayman v. Luck, 2012-Ohio-3354, ¶¶13-15. The
appellate court further conceded that Virginia law must apply to the "enforceability," of the
consent marital agreement. Id. Yet the appellate court then grossly erred by ignoring that
"enforceability" is exactly what is at issue. Id.at ¶16. The Appellee's contempt action
regarding child support is an "enforcement" action and must be treated as such.
Importantly, the appellate court conceded that there are two judgment entries at issue, but
then ignored the appealed contempt fmding for non-pavment of child sunnort (an "enforcement
action"). Judge Mary Boyle writes at page 1 that "Plaintiff Appellant Larry Klayman appeals
from two judgments denying his motion to modify parental rights and responsibilities and
finding him in contempt of court." Klayman v. Luck, 2012-Ohio-3354, ¶1. Virginia law applies at
a minimum to adjudication of the contempt motion against Klayman.^ This contempt motion
directly concerns "enforceability" of the child support provision in the marital agreement. The
decision in Hartman v Hartman, 33 Va. Cir. 373 (Va. Cir. Ct. 1994) -- the exact same court which issued the parties' consent divorce decree -- provides a complete defense to the
"enforcement" of child support.
^ Since Virginia law applies and the lower court applied Ohio law, the entire lower court decisions are also void ab initio and must be reversed. It is a matter of public or great general interest when the courts defiantly refuse to apply the correct law.
7 In Hartman, as in this case, the mother cut off the father's access to the children, and told
the child that someone else was his father. This case involving the Appellant, contrary to the
strained and biased "reasoning" of the magistrate and the Appellee, is even more extreme than
Hartman, as Appellee not only unilaterally, without court order, cut off contact with the children
-- in effect kidnapped them for the better part of five years -- but she also made heinous false
charges of child sexual abuse and alienated them by also telling them that Appellant intended to
take the children away from their family and friends. In so doing, Appellee was forced to adrnit
that she shared the custody petition of Appellant with the children to try to coerce and scare them
into joining her felonious scheme to have the father indicted for child sexual abuse and thus get
rid of him once and for all. ("The Defendant cannot escape censure for telling Isabelle about
the litigation or for reading the (custody) motion to her..." Magistrate Decision at 73
(Emphasis added). Nothing could be more terrible than what this former wife did to the children
- using them for her own ends to try to throw their father in prison and remove him permanently
from her and the children's lives. As in Hartman, Appellant must under these extreme
circumstances be relieved of his obligation to pay child support and he reasonably believed under
Hartman that under these circumstances that he was so relieved.
The hard fact is that Appellee sought to enforce the consent marital agreement by
seeking and obtaining the contempt order which is on appeal, when Mr. Klayman rightly refixSed
to pay child support under the precedent of Hartman. This Virginia law precedent relieved Mr.
Klayman from the payment of child support under these very extreme circumstances. The issue here is not whether the marital agreement is valid and thus enforceable - indeed it was entered into by consent of both parties - the issue is whether the child support provision can be
"enforced" under these extreme circumstances. And that is why the consent marital agreement, which was drafted by Appellee's Virginia counsel at the time, contained a choice of law
provision to apply Virginia law if the consent marital agreement ever had to be enforced by
either pariy. Appellant must, under these extreme circumstances, be relieved of his obliga6on to
pay child support.s
Proposition of Law No. II - The bias and prejudice of the magistrate, calling Mr.
Klayman "evil" and Ms. Luck "good," among other personal attacks and manifest prejudicial remarks in his 93 page diatribe, underscores the fatal flaw of the trial court's ruling.
Just a few of the magistrate's injudicious and outrageous of the statements are as follows:
"Ultimately, the fight would become one of apocalyptic proportions, a struggle between the forces of good [Appellee] and evil [Appellant]." Magistrate Decision at 3(Emphasis added).
(Disparaging Appellant's profession and his alleged word choice concerning "basic needs," with rank speculation and undue sarcasm.) The magistrate wrote: "The statement, he told the court, was a`word choice' by the person who wrote up the report. ... It was an utterly implausible statement from a man who graduated from both college and law school; a man who has two children and spoke proudly of what he did for them while at the same time was highly critical of his ex-wife's parenting abilities and who has repeatedly expounded at length on her faults as a parent..." Magistrate Decision at 11.
(Rejecting ultimate findings of DCF and the Sheriff and Prosecuting Attorney, and a polygraph test, showing that Appellant did not sexually abuse his children, and instead speculating derisively on what DCF considered and making up his own facts to prove his prejudicial points out of whole cloth). "The Plaintiff would trumpet the child's denial that he had been touched in his private area as well as CCDCFS's fmal determinafion as evidence that the Defendant created the allegation out of whole cloth. ... He also touted the September 17, 2008 decision by the Assistant Prosecuting Attorney to whom the matter had been referred by the detective from the County SherifPs Department who was investigating the alleged incident " Magistrate Decision at 18. a Appellee has been paid in assets and money by Mr. Klayman close to a million dollars as a result of and a8er the divorce, including alimony and child support, is remarried, has a large family income well in access of $ l OQ000.00 and can afford to pay for the children undef these circumstances. It would be a manifest injustice to force Mr. Klayman (or any other similarly aggrieved parent) to pay child support when he cannot even talk to much less see his children for now going on five years! And, while he is currently paid up on the child support, he still cannot even talk to his children, much more get a birthday or Christmas card from them - because Appellee vindictively and cruelly prevents them from so doing. y U
•"Since the social worker's conclusions were ultimately overniled by her supervisor and because he was not prosecuted, the Plaintiff triumphantly concluded that he had never sexually abused his children...: ' Magistrate Decision at 19 (Emphasis added).
•(Disparaging Appellant as a"high profile lawyer.")"Plaintiff is a lawyer licensed to practice in two or three states and the District of Columbia. He is proud that he has been involved in major cases including suits against powerful domestic and international adversaries as well as the government. It is impossible to believe that someone with his experience, with his training and his background would not have known that once he answered the questions..." Magistrate Decision at 21.
•(Mocldng Appellant for arguing that the lower court should have acted much more quickly over four years and enforced visitation as provided in the marital agreement, rather than let the case drag on with Appellee in violation of the marital agreement). "His complaint about the delay is yet another example of the Plaintiffl s that everyone else other than himself is responsible for the predicament in which he found himself." Magistrate Decision at 40.
•(Magistrate disparaging and mocking Appellant's love for his children and suggesting he is a liar and crazy) "... Plaintiff sought to portray himself as a warm, affectionate parent who deeply loves his children and who wants nothing more than to provide for them and to spend time for them. While the Magistrate has no doubt that the Plaintiff loves his children in his own way, the bulk of his claims, especially those relating to the Defendant both as a person and a parent, are so devoid of the factual content as to amount to fantasy." Magistrate Decision at 46.(Emphasis added).
•(Cuhnination of Magistrate's bias and prejudice and disdain for Appellant) "... the Magistrate fmds that the Plainfiff's testimony is entitled to no weight. He is simply not credible." Magistrate Decision at 87 (Emphasis added).
Many more examples of the magistrate's biased remarks can be found in the Amended
Appendix Tab 1 filed before the appellate court. Whether or not the trial judge reviewed the
record - and it is doubtful that she did so thoroughly given the press of a multitude of cases
and the family court's documented backlog -- but simply rubber stamped the magistrate's
findings - judicial officers no less than magistrates cannot and should not disparage, belittle
and mock a party as is set forth with the sickening venom injected into the lower court's
decision. Thus, the adoption of the magistrate's decision by the judge now subjects her finding
to reversal as well. And, her adoption of the magistrate's prejudicial remarks is even more
10 flawed, as she was not present to assess the credibility of Mr. Klayman during the trial, but
instead now signed on to this disgraceful outrage in any event. In short, the appellate court's
judgment entry must be reviewed and reversed as it is in cleaz and obvious error - as the trial
court's remazks aze a disgrace and an embarrassment to the judiciary. They show a high degree
of prejudice and bias. Appellant repeatedly called these prejudicial remazks to the appellate
court's attention only to haue both the trial court and the appellate court simply ignore and
refuse to address these issues -- but instead "circle the wagon."
Despite evidence of gross bias and prejudice, the appellate court sidesteps this by ruling that Klayman's prior motion to disqualify the magistrate, and which was denied, somehow prevents him from raising the matter on appeal after the magistrate's decision issued. Klayman v. Luck, 2012-Ohio-3354, ¶21. The bias and prejudice upon which this appeal is based showed its ugly head in new forms in the 93 page diatribe which constitutes the magistrate's decision and the trial judge's judgment. Id. Thus, this bias and prejudice again was put at issue in new and more insidious ways in a decision which effectively removes Klayman's children from him permanently, and was always subject to appeal in any event, even if the lower court had denied the original motion. Id.
Further, while the trial court judge adopted the magistrate's decision, her judgment entry contains no factual or legal discussion or reasoning -- because she simply sidestepped the decision.
Under the appellate court's flawed reasoning, once an interlocutory motion to disqualify is granted, a judge can engage new, unlimited acts of bias and prejudice with total impugnity.
The magistrate's new acts of bias and prejudice infect the entire judgment entry and must be
11 addressed on appeal to this Court. Thus, the appellate court's finding of no bias and prejudice
must be reviewed and reversed.
Proposition of Law No. III - The appellate court's finding that the magistrate did not
abuse his discretion in ruling that Klayman has inappropriately touched his child Lance,9 is contrary to the record. The trial record appears is devoid of any evidence of how Klayman allegedly touched his child, much more "inappropriately." Klayman v. Luck, 2012-Ohio-
3354, ¶25. Thus, the appellate court's decision that the magistrate can draw an inference that
Klayman inappropriately touched his child when Klayman did not respond to the magistrate's liking as to what an inappropriate touching is, defies logic. How can Klayman be asked to define and speculate, in an irrelevant fashion, what an inappropriate touching is when there was no evidence that he did so and he denied having done so? The question by the magistrate was
"threatre of the absurd," underscoring as well his bias and prejudice, as well as his taunting and hostile attitude and mindset generally. Thus, the appellate court's judgment must be reviewed and reversed.
Proposition of Law No. IV - The appellate court's finding that the magistrate could step into the shoes of a psychological expert and also speculate what was in the Klayman childrens' minds concerning custody issues, is also in error. The magistrate fust creates an inference out of thin air that Klayman inappropriately touched his son -- without a shred of evidence on the record that there was an actual inappropriate touching much less a definition of what such a touching is as a matter of fact and law. He then notably failed, consistent with his bias and prejudice, contrary to established law and precedent, to draw an inference that Appellee's failure to call her court appointed psychological expert, Dr. Mark Lovinger, would have resulted in
9 There was no finding of sexual abuse as admitted by both Appellee's attorney Susan Jambe at the oral argument upon questioning by Judge Mary Boyle as well as the magistrate himself.
12 favorable testimony for Klayman. In this regard, the law required the Magistrate to draw an
inference against Appellee that Dr. Lovinger's court appointed report and related testimony
would have been fauorable to Appellant.lo
As important as the Magistrate's failure to draw an adverse inference, is that the
Magistrate, by stepping into the shoes of Dr. Lovinger, made himself an expert witness and thus,
due to his conflict of interest, must be summazily disqualified. The case law is well settled on this.11 By thrusting himself into the role of a child psychologist, divining the minds of the children and the Appellant in particulaz, and making psychological findings based on his own so called observations of the Appellant (he never even bothered to interview the children or observe them in any way), the magistrate became an expert witness in the case - and thus a fatally conflicted jurist - and he must be disqualified and all of his orders vacated.
lo Consistent with longstanding U.S. Supreme Court and other precedent, courts have held that the failure to call a material witness who is in a position to offer material proof on a crucial issue, can result in a negative inference against the parry who failed to call him. In Graves v. United States, 150 U.S. 118, 121 (1893), the Supreme Court ruled: "(I)f the accused is so situated that he can offer evidence of all the facts and circumstances, as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consisfently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would tend to support the chazge." This rule, known as the "missing witness rule," applies in both civil and criminal cases. See Herbert v. Wal-Mart Stores Inc., 911 F. 2d 1044, 1046 (5`^ Cir. 1990) ("The rule ... is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." See also Young v. Corrigan, 208 Fed. 431, 437 (N.D. Ohio 1912) ("... such a failuce (to produce a material witness) raises a presumpfion that his testimony would be damaging to the party who seems from the state of the record to be called upon to produce him."). il See In the Interest ofRoss, 29 I11.App.3d 157, 329 N.E.2d 333 (1975)(remanding and reassigning a case aSer the presiding judge decided to repeat a mental health expert's psychological test in chambers and came to a different conclusion); In Kovacs v Szentes, 33 A. 2d 124 (1943) ("In effect the trial court, as a basis for these fmdings, made himself a witness, and in making them availed himself of his personal knowledge; he became an unsworn witness to material fact without the defendant having the opportunity to cross examine, to offer countervailing evidence or to lrnow upon what evidence the decision would be made." As such, the judgment was set aside and a new trial ordered).
13 Thus, the appellate court's ruling that the magistrate and then the judge need not have interviewed the children or consider the expert testimony of the pyschological court appointed expert, Dr. Mark Lovinger, or draw an adverse inference against Appellee, is in clear error and must be reversed.
Proposition of Law No. V- The appellate court also ruled in error that notes of Appellee that predated the divorce were relevant and could be introduced into evidence with regazd to the wife's motion to modify parenting time. It found incorrectly that Appellant's attorney had not objected to its introduction into evidence. More importantly, the admission of the records does not alter the cleaz prohibition set forth in Ohio Rev. Code § 3109.04(E)(1)(a) against considering facts that predate the last order. The evidence predating the last order, whether admitted into evidence or not, could not be considered, as a matler of law. Thus, the appellate court's finding must be reconsidered and reversed.
Proposition of Law No. VI - The appellate court's fmding that the magistrate properly dismissed Appellant's motion for order to show cause with regard to her unilateral violation of the visitation provisions of the marital agreement is also in error. The record reflects that due to his fmancial difficulties and other factors, Appellant could not be present on the final date of the trial and had asked simply for a continuance. Kdayman v: Luck, 2012-Ohio-3354, ¶37. The record will also reflect that when Appellee made similaz requests with regard to scheduling and her unauailability, the magistrate accommodated her. There thus was insufficient reason to dismiss all of Klayman's case. Further, the magistrate and the judge failed to consider or address -- the crucial testimony of Appellant's key witnesses, Sandra Cobas (PX 108A and B), Pino Cignarella
(PX 107), and Bob Witbrott (TR V. III pp. 69-84), all of which was admitted into evidence. That the appellate court appazently failed, despite Appellant's entreaties, to review this testimony with
14 regazd to all of the assignrnents of error, underscores how it too erred and why its judgment entry of July 26, 2012, which the appellate court refused to reheaz in a decision of September 5, 2012, must be reviewed and reversed. In short, the failure to review and consider testimony from these independent third parry witnesses also constitutes a denial of due process of law to Appellant.
Proposition of Law No. VII - Since this case must be remanded for retrial, the highly punitive and outrageous attorney's fees award of $325,000, consistent with the trial court's bias and prejudice, must also be reviewed and reversed at this time.
CONCLUSION
For these reasons, the judgment of the appellate court affinning the trial court, must be reviewed and reversed. It is now five years since Mr. Klayman has been able to see or even talk to his children and this manifest injustice and harm to the children must now be addressed by an unbiased court and rectified. This sad and extreme case before this Court, which has the power to redress the wrongs inflicted on Mr. Klayman and his children by Appellee, cries out for justice
- finally.
In sum, a review of the trial court's and the appellate court's rulings, will help preserve not only the family relationship, but also the integrity of the entire Ohio judicial system and the confidence of the people that this system is fair and just. There can be no greater public and great general interest than maintaining the integrity of the Ohio court system and its judiciary, as well as preserving the constitutional right of a parent to be with his children.
15 CERTIFICATE OF SERVICE
was forwarded via U.S. Mail this The foregoing Memorandum In Support of Jurisdiction
19th day of October, 2012, to:
Suzanne M. Jambe, Esq. 1900 East Ninth Street 3200 National City Center Cleveland, Ohio 44114-3485
Attorneyfor Appeldee Stephanie Ann Luck
16 Appendix 1 , ^.
[Cite as Klayman v. Luck, 2012-Ohio-3354.] ^ourt ot ^^^e^cY^ of ®^jio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 97074 and 97075
LARRY ELLIOT KLAYMAN
PLAINTIFF-APPELLANT
vs.
STEPHANIE ANN LUCK
DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Common Pleas Court Domestic Relations Division Case No. D-316840
BEFORE: Boyle, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 26, 2012 ATTORNEY FOR APPELLANT
Roger L. Kleinman Cavitch, Familo & Durkin Co., LPA 1300 East Ninth Street 20th Floor Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Suzanne M. Jambe James H. Rollinson Baker & Hostetler, LLP 1900 East Ninth Street 3200 PNC Center Cleveland, Ohio 44114-3485
Guardian ad litem
Jennifer L. Malensek The Bradley Building 1220 West Sixth Street Suite 502 Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Plaintiffappellant, Larry Klayman, appeals from two judgments denying his motion to modify parental rights and responsibilities and finding him in contempt of court. He raises seven assignments of error for our review:
"[1.] The trial court erred as a matter of law in failing to apply the law of the State of Virginia, where the Virginia divorce decree specifically provides that Virginia law applies.
"[2.] The magistrate's personal animosity towards appellant constitutes bias or prejudice disqualifying him from ruling.
"[3.] The trial court's finding that appellant engaged in inappropriate touching of his child is contrary to the manifest weight of the evidence and an abuse of discretion.
"[4.] The trial court erred as a matter of law in terminating appellant's right to free access to his children without any expert testimony or interview with the children, thereby resulting in the magistrate himself functioning as an expert witness.
"[5.] The trial court erred as a matter of law in considering evidence which predated the filing of appellee's motions to modify the visitation order.
"[6.] The trial court abused its discretion by denying appellant's motion to show cause where appellee admitted she denied visitation without a court order.
"[7.] The trial court's award of $325,000 in attorney's fees is an abuse of discretion." {¶2} Finding no merit to his appeal, we affinn the judgment of the trial court.
Procedural Historv and Factual Backg r ound
{¶3} Klayman and defendant-appellee, Stephanie Luck, were married in
Washington D.C. in July 1996. They had two children born during the marriage, the
first in December 1997, and the second in November 1999. They were divorced in
Virginia in June 2003 after entering into a Marriage Settlement Agreement
("Agreement") that was incorporated into their divorce decree.
{¶4} The Agreement provides that Luck would have "legal and physical custody
of the children and shall have full control and supervision of their care, guidance, maintenance and education, subject to [Klayman's] rights of reasonable access and visitation" as further set forth in the Agreement. With respect to visitation, the
Agreement provided:
The Husband shall have visitation with the minor children as is reasonable, particularly since the parties agree that the Wife and children may move to Cleveland, Ohio, and the Husband resides in Florida and the Washington D.C. Metropolitan area. The Husband shall have visitation with the minor children on the first and third weekends per month on Saturday from at least 9:00 a.m. until 8:00 p.m. and on Sunday from at least 10:00 a.m. until 5:00 p.m. The Wife shall have the final decision regarding the children staying overnight with their Father, and the Wife shall not unreasonably withhold her consent. Subject to the Wife having the final say regarding the children staying overnight with their Father, the Husband shall have the right to request that the children visit him away from Cleveland and for reasonable summer vacation and the Wife shall not unreasonably withhold her consent.
{¶5} Regarding child support, Klayman agreed to pay $1,800 per month, as well as pay for the children's private school education up to $5,000 per year. {¶6} The Agreement further provided, under "Governing Law," that "[t]he
validity, enforceability and interpretation of this Agreement shall be determined and
governed by the laws of the State of Virginia."
{¶7} As specified in the Agreement, Luck moved to the Cleveland area with the
children in 2004. The record reveals that the parties began arguing over Klayman's
visitation with the children and his failure to pay support. In October 2007, a Virginia
court found Klayman in contempt of court for failing to pay $74,015 in support. To
purge his contempt, Klayman paid the full amount to Luck, plus interest and attorney
fees.
{¶8} In July 2007, Klayman filed a motion to modify parental rights and
responsibilities in Cuyahoga County, alleging that Luck failed to comply with the
visitation schedule set forth in their Agreement. He simultaneously filed a petition to register their foreign divorce decree. In August 2007, he filed a motion to show cause claiming that Luck was denying him visitation. In September 2007, Luck moved to modify child support and temporarily suspend visitation. Luck further filed several motions to show cause regarding Klayman's nonpayment of child support.
{¶9} Separate magistrates heard the issues. One magistrate heard the parenting issues, and one magistrate presided over the child support issues. Regarding the parenting issues, the magistrate granted Luck's motion, imposed supervised visitation on
Klayman, and ordered that Klayman pay Luck $325,000 in attorney fees. With respect to the child support issues, the magistrate found Klayman in contempt of court. {¶10} Klayman filed objections to both magistrate's decisions. The trial court
overruled Klayman's objections, adopted the magistrate's decisions in their entirety, and
ordered them into law. It is from these judgments that Klayman appeals.
Standard of Review
{¶11} Unless otherwise noted, our standard of review is whether the trial court
abused its discretion in adopting the magistrates' decisions. A trial court's ruling on
objections to a magistrate's decision will not be reversed absent an abuse of discretion.
_: Gobel v. Rivers, 8th Dist. No. 94148, 2010-Ohio-4493, ¶ 16. Furthennore, when
reviewing the propriety of a trial court's determination in a domestic relations case, an
appellate court generally applies an abuse of discretion standard. Gray v. Gray, 8th Dist.
No. 95532, 2011-Ohio-4091, ¶ 7, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 ( 1989).
{¶12} An abuse of discretion implies that the court's attitude was unreasonable,
arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "Abuse of discretion" is a
term of art, describing a judgment neither comporting with the record, nor reason. See,
e.g., State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). "A decision is
unreasonable if there is no sound reasoning process that would support that decision."
AAAA Ent., Inc. v. River Place Comm. Urban Redevelopment, 50 Ohio St.3d 157, 161,
553 N.E.2d 597 ( 1990). Further, an abuse of discretion may be found when the trial
court "applies the wrong legal standard, misapplies the correct legal standard, or relies on y
clearly erroneous findings of fact." Thomas v. Cleveland, 176 Ohio App.3d 401,
2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).
Choice-of-Law Clause
{¶13} In his first assignment of error, Klayman argues that the magistrate erred by
not applying Virginia law as required by the Settlement Agreement. He maintains that if
the magistrate would have applied Virginia law, specifically Hartman v. Hartman, 33
Va.Cir. 373, 1994 WL 1031136 (Apr. 13, 1994), he would have prevailed. We disagree.
{¶14} The parties' Settlement Agreement is a contract. The interpretation of a
contract is a question of law that we review de novo. Allstate Indemn. Co. v. Collister,
l lth Dist. No. 2006-T-0112, 2007-Ohio-5201, ¶ 15, citing Nationwide Mut. Fire Ins. Co.
v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). Our primary
goal is to ascertain and give effect to the intent of the parties. Hamilton Ins. Servs., Inc.
v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273, 652 N.E.2d 684 (1999). We presume
the intent of the parties to a contract resides in the language used in the written
instrument. Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987),
paragraph one of the syllabus.
{¶15} A choice-of-law clause is "[a] contractual provision by which the parties
designate the jurisdiction whose law will govern any disputes that may arise between the
parties." Black's Law Dictionary 275 (9th Ed.2009). The substantive law of
jurisdictions can differ significantly, and this type of clause is employed to reflect the justified expectations of the parties who bargained over this tenn. Ohio has adopted the 1 Restatement of the Law 2d, Conflict of Laws, Section 187, at 2(1971), to detennine
whether the state's law chosen by the parties should govem the contractual dispute.
Schulke Radio Prods., Ltd. v. Midwestern Broadcasting Co., 6 Ohio St.3d 436, 453
N.E.2d 683 (1983), syllabus; Ohayon v. Safeco Ins. Co., 91 Ohio St.3d 474, 486, 747
N.E.2d 206 (2001). But an Ohio court cannot invoke this section unless it is "satisfied
that the parties have actually made an express choice of law regarding the issue before the
court." Ohayon at 486, citing 1 Restatement of the Law 2d, Conflict of Laws, Section
187, Comment a(1971). The law of the forum state, in this case Ohio, determines
whether the parties did in fact choose the law to govern the dispute. See Restatement,
Section 187, Comment a("The rule of this Section is applicable only in situations where
it is established to the satisfaction of the forum [Ohio] that the parties have chosen the
state of the applicable law.").
{¶16} After reviewing the Agreement, we flnd that the choice-of-law clause does
not apply in this case. The clause only applies to "[t]he validity, enforceability and
interpretation" of the Agreement. It says nothing about Virginia law applying to
modifications of parental rights and responsibilities. See DeSantis v. Lara, 1 st Dist. No.
C-080482, 2009-Ohio-2570 (where agreement lacks a choice-of-law clause goveming modifications, Ohio law applies). Having found that Ohio law applies, we need not address Klayman's arguments regarding Hartman, 33 Va.Cir. 373.
{¶17} Accordingly, Klayman's first assignment of error is overruled.
Bias or Prejudice D
{¶18} In his second assignment of error, Klayman argues that the magistrate's
opinion regarding the parenting issues "is so infused with personal animosity towards
[him] that it should be viewed as a textbook example of an abuse of discretion."
Klayman raises many instances where he claims the magistrate was prejudiced against
him.
{¶19} The docket reveals that after the trial was over, Klayman moved to
disqualify the magistrate. The trial court denied his motion.
{¶20} Civ.R. 53(D)(6) provides that disqualification of a magistrate for bias or
other cause is within the discretion of the court. See also In re Disqualification of
Wilson, 77 Ohio St.3d 1250, 1251, 674 N.E.2d 360 (1996). Accordingly, we will not reverse the trial court's decision absent an abuse of discretion. Id.
{¶21} Klayman does not contend that the trial court was also biased, nor does he argue that the trial court failed to independently review the magistrate's findings of fact and conclusions of law. We therefore presume that the trial court independently reviewed the magistrate's decision and found no bias or prejudice because it overruled
Klayman's objections, adopted the magistrate's decision as its own, and ordered it into law. Thus, we conclude that the trial court did not abuse its discretion when it denied
Klayman's motion to disqualify the magistrate.
{¶22} Klayman's second assignment of error is overruled.
Manifest Weight of the Evidence {¶23} In his third assignment of en or, Klayman argues that the magistrate's finding that he engaged in inappropriate touching of his child was against the manifest weight of the evidence.
{¶24} A judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d 742 (1993). Where the decision in a case turns upon credibility of testimony, and where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court. See Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); Cohen v. Lamko,
Inc., 10 Ohio St.3d 167, 462 N.E.2d 407 (1984).
{¶25} The issues raised by Klayman involve credibility assessments made by the magistrate. Klayman challenges these findings. The magistrate heard evidence from the children's pediatrician who reported allegations of sexual abuse to children services, and from a social worker at children services who found that sexual abuse was
"indicated." Although the social worker's Ending was later changed to
"unsubstantiated" when Klayman appealed, the magistrate explained that the supervisor who changed the social worker's finding did not testify. The magistrate pointed out that .
he was obligated to make his own independent analysis based upon the parties and the
evidence before him. In doing so, the magistrate found
on more than one occasion [Klayman] act[ed] in a grossly inappropriate manner with the children. His conduct may not have been sexual in the sense that he intended to or did derive any sexual pleasure from it or that he intended his children would. That, however, does not mean that he did not engage in those acts or that his behavior was proper.
{¶26} The magistrate further found it significant that although Klayman denied any allegations of sexual abuse, he never denied that he did not engage in inappropriate behavior with the children. The magistrate further found it notable that Klayman, "for all his breast beating about his innocence ***[he] scrupulously avoided being questioned by anyone from [children services] or from the Sheriff's Deparnnent about the allegations," and that he refused to answer any questions, repeatedly invoking his Fifth Amendment rights, about whether he inappropriately touched the children. "Even more disturbing" to the magistrate was the fact that Klayman would not even answer the simple question regarding what he thought inappropriate touching was. The magistrate stated that he could draw an adverse inference from Klayman's decision not to testify to these matters because it was a civil proceeding, not criminal.
{¶27} After reviewing the record, we find no abuse of discretion on the part of the
trial court in overruling Klayman's objections regarding the magistrate's finding that
Klayman inappropriately touched the children.
{¶28} Klayman's third assignment of error is overruled.
Expert Testimony {¶29} In his fourth assignment of error, Klayman maintains that the trial court
erred in terminating his "right to free access to his children" without any expert testimony
or interview with the children. He claims that the magistrate acted as a psychologist in reaching this "draconian result."
{¶30} After review, we find no abuse of discretion on the part of the trial court in adopting the magistrate's decision. In child custody proceedings, a court is not required to interview the children without a request by one of the parties to do so. R.C. 3109.04.
Klayman never requested the court interview the children. Further, the magistrate was permitted to make decisions based upon the evidence before him, which is what he did.
If Klayman wanted the magistrate to consider expert testimony, it was his burden to place expert testimony on the record. He failed to do so.
{¶31} Klayman's fourth assignment of error is overruled.
Motion to Modify Parenting Time
{¶32} In his fifth assignment of error, Klayman contends that the magistrate erred by considering evidence that predated Luck's motion to modify his parenting time.
Specifically, Klayman argues that the magistrate erred by considering notes that Luck had taken before she and Klayman were divorced. Luck's notes were part of the children services' social worker's file. Although Klayman did not object to these notes being admitted at trial, we will briefly address his argument.
{¶33} In support of this argument regarding Luck's motion to modify parenting time, Klayman incorrectly cites to R.C. 3109.04(E)(1)(a). But it is R.C. 3109.051 that addresses parenting time rights. Pursuant to R.C. 3109.051, "a trial court is permitted to modify visitation rights if it determines that the modification is in the child's best interest." Lisboa v. Lisboa, 8th Dist. No. 92321, 2009-Ohio-5228, ¶ 11. In determining whether a modification is in the child's best interest, the court is guided by the enumerated factors listed in R.C. 3109.051(D), which includes, among other things, the health and safety of the child, the prior interaction and interrelationships of the child with the child's parents, and whether there is reason to believe that either parent has acted in a manner resulting in the child being an abused or neglected child. R.C.
3109.051(D)(1), (7), and (11).
{¶34} Accordingly, we find no error on the part of the magistrate in considering the social worker's file as it was relevant to determining Luck's motion to modify parenting time. Specifically, it was relevant to determining what was in the children's best interest.
{¶35} Klayman's fifth assignment of error is overruled.
Motion to Show Cause
{¶36} In his sixth assignment of error, Klayman argues that the trial court abused
its discretion when it failed to find Luck in contempt where she admitted that she denied
him visitation without a court order.
{¶37} According to the record, the magistrate dismissed Klayman's motion to
show cause after he failed to appear on the final date of the trial after being warned that
there would be no further continuances. Klayman does not argue that the magistrate erred when it dismissed his motion to show cause. Thus, we find no abuse of discretion on the part of the trial court in adopting the magistrate's decision.
{¶38} Klayman's sixth assignment of error is overruled.
Attorne^Fees
{¶39} In his final assignment of error, Klayman argues that the trial court's award of attorney fees to Luck in the amount of $325,000 was not equitable and was an abuse of discretion.
{¶40} R.C. 3105.73(B) provides that in any post-decree motion or proceeding, "the court may award all or part of reasonable attorney's fees and litigation expenses to either pariy if the court finds the award equitable." In determining whether an award of attorney fees is equitable, "the court may consider the parties' income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties' assets."
{¶41} After reviewing the record, we find no abuse of discretion on the part of the trial court in adopting the magistrate's decision. Although the award was significant, we
find it to be entirely appropriate under the facts of this case. The magistrate found that
Klayman's conduct "made this matter anything but routine and straightforward." He
found that not only did Klayman file many motions in the case, he also battled the release
of his financial records "here as well as in Alabama and Florida." Additionally,
Klayman filed a petition for writ of mandamus, four interlocutory appeals, and sued Luck
and her counsel in federal district courts in Florida. Klayman "repeatedly interfered Fa IP
with" Luck's legitimate discovery requests, and refused to "accept and adhere" to
decisions of the court and the court of appeals. The magistrate found that Klayman
purposefully prolonged litigation, telling Luck's mother that if she did not settle, he
would take the case through years of litigation which would cost them hundreds of
thousands of dollars. Klayman did not deny that he made the statement.
{¶42} The magistrate further considered the testimony of Luck's counsel, who
practices almost exclusively in domestic relations matters, that this was the most "atypical
domestic relations matter" that she had ever been involved in. Luck's counsel testified
that since 2007 she had charged Luck $464,041 in attorney fees and an additional $17,208
in expenses.
{¶43} Considering all of the factors, the magistrate found that an award of
$325,000 was appropriate and equitable. After reviewing the record, we find no abuse
of discretion.
{¶44} Klayman's seventh assignment of error is overruled.
{¶45} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR Appendix 2 Co^rf of A^pea^ cif t^t^ic^, 'Eighth. Districi;
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LARftY:Ei.L10T 1CLAYM;4N VS:. ^TEpHANIE ANN:LltGK
Ntot+cra .6Y Appellant hx stay is d^nie*t^ ^::> STi;^iVART, M, .I:^ ^(3hIGUFt RO^`Ob; K,, J., C.LJNC{1t2 EOYCE,.M., P.J, T,Ct: ^{^ER L. t^E.E1NMAN Of\UiTCH, F;4MILC3 &:DLiRt^tN CEi'., LF^A 134Q E.4ST NiNTH STREE:f 20TN FLUOFt CLEVELANC?, OH 44114
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L p,f^^t3" ELLIOT KLAYMAN VS, ^TEPHRNF^ ANPt LUCI^
Motian t5y Appe[taint f©r refl^aring is danied.
STEWART, M., J., GONGUR. f^,OC^O, K„ J.r G[SNCUR. BOYLE, M., P'.J,
^^; R^ER L: tCLEINMRIJ CAUITCH, FAMfLO & DURKIN GO.; LPA 1300 EAST NINTH STREET 20TH FLOOR r;LEVELAND, OH 4^1914
t^t^til^^i^Fi ^tatl€t Appendix 3 COURT OF COMMON PLEAS DIVISION OF DOMESTIC RELATIONS CUYAHOGA COUNTY, OffiO
LARRY ELLIOT KLAYMAN Case No: DR07 316840
Petitioner Judge: DIANE M. PALOS -vs-
STEPHANIE ANN LUCK JUDGMENT ENTRY
Respondent
Tlus matter came on for hearing on June 29a`, and June 30a`, July 2°a, October 23`a, 26`^, 27a`, 28a' and 29a`, November 3`a, 4th, and Sa', as well as December lst, 2aa 3`a and December 4, 2009, before Magistrate Lawrence R. Loeb upon the Petitioner's Motion For Allocafion of Parental Rights & Responsibilities, Motion No. 246178: Petitioner's Motion For Attorney Fees, Motion No. 246180; Petitioner's Motion To Show Cause, Motion No. 247721; Respondent's Motion Motion to Modify Divorce Decree (denominated by the Court as Modify Existing Order Of Court), Motion No. 249314; Respondent's Motion For Attomey Fees, Motion No. 253120; Respondent's Motion For Sanctions, Motion No. 253121; Respondent's Motion To Show Cause Noncompliance With Judgment Entry, Motion No. 260457; Respondent's Motion For Attorney Fees, Motion No. 288236 and Respondent's Motion For Attorney Fees, Motion No. 290239.
The Court adopts the Magistrate's Decision filed June 9, 2010, in its entirety.
IT IS HEREBY ORDERED:
AFTER CONSIDERING THE MAGISTRATE'S DECISION FILED JUNE 9, 2010, PLEADINGS, EXHIBTTS, AND COMPLETE TRANSCRH'T, PETITIONER'S PRELIMINARY OBJECTIONS FILED JUNE 23, 2010, AND SUPPLEMENTAL OBJECTIONS FILED APRIL 22, 2011, ARE HEREBY OVERRULED AND THE DECISION OF THE MAGISTRATE ADOPTED WITHOUT MODH+ICATION.
Petitioner/Plaintiffs Mofion For Allocatlon of Parentai Rights & Responsibilities, Motion No. 246178, and Petitioner/Plaintiffs Motion to Show Cause, Motion No. 247721, are dismissed with prejudice. Respondent/Defendant's Motion to ModifyDivorce Decree, Motion No. 249314, is granted. Pending further order of Court the Petitioner/Plaintiff shall haue supervised parenting time with the minor children every other weekend, except when the children are out of the town for vacation, from Saturday at 10:00 a.m. to 7:00 p.m. and on Sunday from 10:00 a.m. to 7:00 p.m. with a supervisor to be selected by the Respondent/Defendant and paid for by the Petitioner/ Plaintiff. In addition, the Petitioner/Plaintiff shall haue supervised visitation with the children from 10:00 a.m. to 7:00 p.m.on the.holidays specified in the parties' Virginia divorce decree. The Petitioner/Plaintiff shall not move this Court to modify the supervised parenting time and the Court shall not consider a motion to modify supervised parenting time or modify the supervised parenting time schedule set forth in the preceeding paragraph until the Petitioner/ Plaintiff submits to a fu11 psychiatric or psychological evaluation to be conducted by a psychiatrist or psychologist in the Greater Cleveland area acceptable to the Respondentl Defendant. The Petitioner/Plaintiff shall sign releases for the individual conducting the evaluation to have full access to any and all medical and/or psychological records and/or records of any counselor with whom the Petitioner/Plaintiff has consulted for any reason and for any other records that the person conducting the evaluation may deem necessary in order to compete the evaluation. The Respondent/Defendant shall have full access to the person conducting the evaluation and may provide the evaluator with whaterver documents she believes the person conducting the evaluation may need in order to complete his/her evaluation. The cost of the evaluation shall be borne by the Petitioner/Plaintiff.
Petitioner/Plaintiff's Motion for Attorney Fees, Motion No. 246180, is denied. Respondent/Defendant's Motion for Sanctions, Motion No. 253121, is denied. Respondent/ Defendant's Motion to Show Cause, Motion No. 260457, is denied. Respondent/Defendant's Motions for Attomey Fees, Motion No. 288236, Motion No. 290239, Motion No. 253120, and the motion she filed for Attorney Fees at the same time that she filed her Motion to Modify Decree are granted. The RespondentlDefendant is hereby awarded attomey fees in the anmout of $.325,000.00 for which judgement is rendered and execution shall issue.
Costs adjudged against the Plaintiff. ^ ^ ^^f JUDGE DIANE M. PALOS
pap cc: oger L. Kleinman, Esq. Attomey for Pedtioner
Suzanne M. Jambe, Esq. Attorney for Respondent
Jennifer L. Malensek, Esq. Guardian ad Litem
2 DR-H733 COURT OF COMMON PLEAS DIVISION OF DOMESTIC RELATIONS ^ ^ ^,_ ^ ^ CUYAHOGA COiJN'I'Y, OHIO
LARRY ELLIOT I^LAYMAN Case No: DRO^^^ 1'6840 ^ A^• ^^
Petitioner . G"tRAL';` ^ ^V^^^. ^T^ CIERK ^F, „^,^ .;, ,, Judge: DIANE 1^.^'AL^^ '- •;^^"" ' _ys_ _
STEPHANIE ANN LiICK MAGISTRATE'S DECISION
Respondent
This matter came on for hearing on June 29`h, and June 30a', July 2°a October 23`a 26`n 27a`, 28`h and 29a', November 3`a, 4`^, and 5`h, as well as December 1^, 2"d, 3`a and December 4, 2009, before Magistrate Lawrence R. Loeb upon the Petitioner's Motion For Allocation of Parental Rights & Responsibilities, Motion No. 246I78: Petitioner's Motion For Attorney Fees, Motion No. 246180; Petitioner`s Motion To Show Cause, Motion No. 247721; Respondent's Motion Moiion to Modify Divorce Decree (denominated by the Court as Modify Existing Order Of Court), Motion No. 249314; Respondent's Motion For Attorney Fees, Motion 1Vo. 253120; Respondent's Motion For Sanctions, Moiion No. 253121; Respondent's Motion To Show Cause Noncompliance With Judgment Entry, Motion No. 260457; Respondent's Motion For Attorney Fees, Motian No. 288236 and Respondent's Motion For Attorney Fees, Motion No. 290239.
The Petitioner (herein after refened to as "PlaintifP'), Larry Elliot Ktayman, appeared along with his counsel, Roger L. Kleinman, and the Respondent (hereinafter referred to as "Defendant"), Stephanie Ann Luck, appeared with her counsel, Suzanne Jambe and James Rollison. In addition; the Guardian ad Litem, 3ennifer Malensek, appeared on behalf of the parties' minor children. The Court Reporters were Sharon Deka, Karen Lamondola, Kathleen Kuznek, Cynthia Stanton, Ria Sobolewski and Terri J. Moroney.
THE MAGISTRATE MAKES TAE FOLLOWING FINDTNGS OF FACT AND CONCLUSIONS OF LAW:
The Magistrate finds that service upon said motion{s) was duly and properly made; that notice containing the date and time of this proceeding was mailed ta counsel of record or, if unrepresented, to the parties themselves; and that the fact of such mailing was journaiized in the Domestic Relations Hearing.7ournal maintained by the Clerk of Courts and is evidenced by a notation on the Docket.
The present round of litigation began on July 5, 2007 when the Plaintiff filed a Motion to Modify Parental Rights and Responsibilities, Motion No. 246178. Between then and June 29, 2009 when trial began the parties filed an additional eighty-seven (87) motions (which excludes motions for continuance). On Apri1 1, 2008 the Court issued the foliowing order: r
Petitioner's Motion for Attorney Fees # 247722 is hereby consolidated with Petitioner's motion fro Attorney Fees # 246180. All issues raised in any of the foregoing motions shall be considered under motion # 246180.
Respondent's Motion for Attomey Fees # 258440 and # 258139 are hereby consolidate (sic) with Respondent's Motion for Attorney Fees # 253120. All issues raised in any af the foregoing motions shall be considered under motion no # 253120.
Twenty-three days later the Court issued another entry consohdated Petitioner's Motions for Attorney Fees, Motian Nos. 260506, 260660 and 260597 into his Motion for Attorney Fees, M.a+±on No. 246180 adding that all issues that could be raised under the three motions would be considexed under Motion No. 246180. At the same time, the Court consolidated the Respondent's Motions for Attomey Fees, Motion Nos. 260302, 260305, 260459 and 260470 into Motion No. 253I20 adding as it had in the past that all issues that could be raised under the four motions would be considered under Motion No. 253120.
In addifion to those actions the Court also consolidated the Respondent's Motion to Temporarily Suspend Visitation, Motion No. 249315, with her Motion to Modify Divorce decree, Motion No. 249314. It also consolidated the Petitioner's Motion to Show Cause,:motion No. 260596, with another Motion to Show Cause, Motion No. 247721. As it had in every other case, the consolidations were followed by the language allowing all evidence to be considered under the motion into which the others were consolidated. Finally, the Court stayed the matter pending the decision of the Court of Appeals in case Nos. 08-091298 and 08-0901317.
On June 18, 2008 the Court issued another order, which in part consolidated other pending motions. Specifically, the Court consolidated the Respondent's Motions for Attorney Fees, Motion Nos. 262456 and 2616I7; into her Motion for Attomey Fees, Motion No. 253I20. It also consolidated the Respondent's Motions for Sanctions, Motion No. 260303 and 260458 with her other motion for sanctions, Mation No. 253121, adding tlaat all issues that could have been raised under the later motions wauld be considered under the motion into which they were consolidated.
During the course of trial the Plaintiff maked Exhibits Nos. 1 to 108, but then withdrew Nos. 37, 54, 60, 62, 71, 84 and 85. All of the Plaintiff's remaining e^ibits, with the exception of No. 104, were admitted into evidence. The Defendant marked Eachibits A through I I I I, all of which were admitted into evidence.
It is possible to argue that the opening act of the drama that culminated in eighteen days of trial arose out of a not uncommon childhood accident; the youngest child's fall on July 3, 2007 that resulted in a broken arm. The child was Lance Klayman, the parry's son who was borh November 14, 1999. FIe had been climhing the diving board at a public pool when he slipped and fell to the concrete. His mother wasn't there at the time, a point that the Plaintiff would hammer at over and over starting the next day when the Defendant called the Plaintiff to notify him of the accident. VJhi1e the incident was supposedly the casus belli for the battle that
2 DR-H733 followed, the trial would reveal that tensions had been building over the preceding two years to the point that it is unlikely that he parties could have avoided the bitter struggle that consumed so much of their time and treasure for much longer.
The only questions were when would the war break out and how brutal it wouId be once it started. If there was any surprise it was not that war would come, but that when it did it would be fought with such intensity on so many different fronts. Ultimately, the fight would become one of apocalyptic proportions, a struggle between the forces of good versus the forces of evil. From the parties' perspective, who would wear those mantles would depend upon which of them was testifying at the time. Every custody battle evidences some aspect of the Zorastrian struggle between the forces of light and darkness. In this oase, those elements came to dominate the fight between these parties to such an extent that no compromise was possible and may neyer be. Many of the batcles would be procedural, but ultimately all of them would impact the fmal decision in this case. It is, however, neither possible nor appropriate to consider the merits of the motions that were outstanding at the time the parties began trial on June 29, 2009 without first reviewing the history that brought them to that point.
That record reveals that the parties, who had appazently met when the Defendant worked for the Plaintiff, were married in Washington, D.C. on 7uly 6, 1996. They subsequently had two children born as issue of that union: Isabelle Natalie Klayman (DOB 12/15/1997} and Lance William Klayman (DOB 11-14-1999}. In 2003 the Plaintiff filed a Bill of Complaint in the Circuit Court for the County of Fairfax, Virginia seeking a divorce from the Defendant. On June 11`^' of that year, after the Defendant had raised a number of concerns about the Plaintiff s behavior with the children, they entered into a Marital Settlement Agreement that, among other things, provided for custody and visitation of the minor children. Specifically, the parties agreed in pertinerit part: .... that the welfare and best interests of their children is the paramount consideration of each of them. The Wife shall haue legal and physical custody of the children and shall have fulI control and supervision of theit care, guidance, maintenance and education, subject to the Husband's rights of reasonable access and visitation as more particularly described below.
The Husband shall have visitation with the minor children as is reasonable, particularly since the parties agree that the Wife and chiIdren may move to Cleveland, Ohio, and the Husband resides in Florida and the Washington, D.C. Metropolitan area. The Husband shall be permitted to have visitation with the minor children an the first and third weekends per month on Saturday from at least 9:00 a.m. until 8:00 p.m, and on Sunday from a# least 10:00 a.m. until 5:00 p.m. The Wife shall have the final decision regarding the children staying overnight with their Father, and the Wife shall not unreasonably withhold her consent. Subject to the Wife having the fmal say regarding the children staying
DR-H733 overnight with their Father, the Husband shall have the right to request that the children visit with him a^vay from Cleveland and for reasonable summer vacation and the Wife shall not unreasonably withhold her consent. (Emphasis added)
PRIVATE SCHOOL. Subject to modification by a court of competent jurisdiction in the event of changed circumstances, the Husband agrees to be responsi'ole for and to pay the reasonable tuition expenses for the private elementary and secondary school, education of each of the minor children of the parties not to exceed the sum of five thousand dollars ($5,000.00} per academic year per child, and he further agrees that he shall pay same on a timely basis. The parties shall consult and reach agreement as to the private school for the children, but the Husband's consent to the Wife's choice shall not be unreasonably withheld.
In addition to those terms, the Agreement provide that the Plaintiff would pay the Defendant the sum of $1,800.00 per month for the support and maintenance of the rninor children as well as to be responsible for and to pay reasonable tuition expenses for private elementary and secondary education for each child not to exceed $5,000.00 per academic yeax per child. As to private school, the parties further agreed that they would consult and reach agreernent as to the private school for the children "...with the Husband's consent to the Wife's choice shall not be unreasonably withheld". Finally, the parties agreed that: "the validity, enforceability and interpretation of this Agreement shall be determined and governed by the laws of the State of Virginia" (Plaintiff's Exhibit 1).
The Plaintiff, who would piove loquacious on almost every other subj ect about his ex- _ wife and her pazenting, never explanned why he entered into an agreement that gave her discretion over whether he could have.the children ovemight. She did, testifying that the Plaintiff wanted custody of the children, but gave up the fight rather than submit to a psychiatric evaluaflon.
The parties presented the Marriage Settlement Agreement to the Court on June 11, 2003, which, after finding that the PIaintiff and Defendant had lived separate and apart for more than a year, granted the Plaintiff a divorce from the Defendant and effectively ordered the terms of their Marriage Settlement Agreement into effect. Finally, the Virginia Court sealed the record in the case. As the parties had contemplated, the Defendant moved to University Heights sometime in 2004, first living with her mother and then moving into her own residence on Kerwick Road, University Heights, Ohio. The geographic distance between the parties did nothing to improve their relationship.
Emails between them as well as correspondence between their attorneys indicate that they began spazing starting sometime in 2005 over the Plaintiff s access to the children and his failure to pay support. (Plaintiff's Exhibits 33-56, 57, 58, 59 61-64 and 66-70 for example and
4 DR-HT33 Defendants Exhibits A-G}. By late 2006 the siriiation had escalated to the point that the parties were back in court in Fairfas, Virginia over the Plaintiff's failure to pay spousal support, medical bills, tuition to Gesu school where the children were enrolled and a lump sum owed to the Defendant for the Plaintiff's interest in Judicial Watch, an organization that the Plaintiff ran at the time. On October 11, 2007 the Circuit Court for Fairfax County issued an order finding that the Plaintiff was in contempt of an order dated December 28, 2006 that found him in contempt and ordered him to pay the Defendant $ 78,015.00 plus interest and attorney fees in the amount. of $ 4,957.69.
The October 11, 2007 order provided that the Plaintiff could purge his contempt and thereby avoid having to serve a 30 day sentence if he paid those two sums. In addifion, the Virginia order provided that:
The Plaintiff shall dismiss, with prejudice, the lawsuit which is pending against the Defendant, Michaei Deluca and Gisela Luck in the 11`h Judicial Circuit in Dade County, Florida, within ten (10} days of the date of this order. (Defendant's E^chibit V)
On December 26, 2007 the Plaintiff sent the Defendant's Virginia lawyer a letter to which he attached two checks totaling $ 84,091.Sb. The remitter of both checks was Diana Yazbeck, the PIaintiff's wife at the time, who noted on both documents that they were loans from her to the Plaintiff (Defendant's Eachibit V)
On July 5, 2007, the Plaintiff filed a Motion To Modify Parental Rights And Responsibilities, a Motion To Modify Child Support and Motion For Attorney Fees (Motion Nos. 246178, 246I79 and 246180 respectively). Attached to the Motion to Modify Parental Rights and Responsibilities was an affidavit that the Plaintiff had signed 'zn Florida on July 3, 2007 in which he declared that his reason for seeking to modify parental rights and responsibilities was:
.... that there has been a change in circumstances which necessitates. this Court to modify the allocation of parental rights and responsibiIities, as set forth in the parties' marital agreement.
AFFIANT states further that it would be in the best interest of the parties' minor children, Isabelle Natalie Klayman, bom December 15, 1997; and Lance William Klayman, born November 14, 1999, that this Court allocate the primary responsibility of the parties' minor children to Affiant.
There was no mention in either the Plaintiff's Motion to Modify Parental Rights and Responsibilities or in the supporting affidavit of Lance's fall that would play such an integral part in the Defendant's effort to obtain custody of the minor children nor could there be since the Plaintiff could not have known about the fall when he signed the affzdavit. In an email sent to the Defendant on Ju1y 4`^ the Plaintiff asked to meet with her in an effort to resolve the various
DR-H733 "matters" that had azisen since the divorce, including the Virginia case. The email then went on to impose a deadline along with a threat, the Plaintiff telling the Defendant:
Please let me know today, and no later, whether you will agree to postpone all legal actions from both sides so we can meet and try to resolve all issues. I am very upset but trying to write this email without emotion. Lance could have been killed and you were not there to supervise him.
If you will not so agree, l cannot wait to take Iegal actions. The kids safety is at stake, my visitation schedule this summer and other^svise is being destroyed as usual, I cannot talk to the kids on the phone on a regular basis, and their (sic) are other ennmerated issues, such as spankings, alcohol, cigarette (sic), religion, cohabitation and other related issnes, to name just a few. (Emphasis added} (Defendant's Exhibit AA)
Whatever other claims he might raise in the following months, the topics the Plaintiff outlined in that email were the basis of his Motion to Modify Parental Rights and Responsibilities.
At tke same time he filed his Motion to Modify Parental Rights and Responsibilities the Plaintiff also filed a Petition to Register Foreign Decree as well as a Motion to File Judgment Entry Under Seal (Motion No. 246181). On August 28, 2007 this Court granted the former, but denied the tatter. Nine days later the Plaintiff filed a Motion to Temporarily Suspend Visitation/Modify Visitafion, Attorney Fees and For a Psychological Evaluation (Motion Nos. 249315, 249314 and 24931 b respectively). The Defendant's Motions to Modify Child Support and For Atforney Fees were never given motion numbers.
By this point the Cuyahoga County Department of Children and Family Services (hereinafter CCDCFS) was involved with the family as a resulf of a ca11 the Plamtiff made to 696-KIDS on July 12, 2007 in which he complained that the Defendant's fianc8 had abused Lance by spanking him and offering.him cigarettes and beer (Court's Exhibit 2). The call, coincidently, was made the day before the Defendant and her fiance were to be married.
Two weeks Iater the Plaintiff filed a Complaint in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, against the Defendant, her husband and the Defendant's mother, Gisela Luck. The complaint alleged that the Defendant "in conspiracy and concert with the other Defendants" promised that if the Plaintiff would pay for expenses and expenditures beyond those he was obligated to pay under the final divorce decree the Defendant would allow the Plaintiff to exceed the visitation schedule in the divorce decree. The Plaintiff went on to claim that those expenses exceeded $ 15,000.00.
The Plaintiff also alleged that: (1) the Defendant had seized and converted Amigo cell phones that he had purchased and given to the children so that he could talk to them as we11 as gold Christian Crosses with Sfars of David on them that he had given to the children and that the Defendant had not sent the children to Florida at an agreed upon fime even though the Plaintiff
DR-H733 had purchased non-refimdable tickets for them. In paragraph twelve the Plaintiff alleged that the Defendant had been cohabitation with Mike DeLuca for at least two years prior to the complaint being filed on July 26, 2007 and as result, the Defendant has effectively cheated him because she continued to collect alimony from him over that period. He also claimed in the same paragraph that the child support that he paid was misappropriated and misused and converted for the Defendant's and Mr. Deluca's use.
Those allegations were laid out in the first twelve paragraphs of the Plaintiff's Complaint or reiterated in the six other counts pursuant to which the Plaintiff alleged he had a right to recover from the Defendants on the grounds of promissory estoppel, breach of contract, conversion, civil theft, fraud in the inducement, and violation of privacy (Exhibit B aitached to Defendant's Motion to Modify Divorce Decree). The Florida action was still pending when, on September 1 l, 2007, this Court appointed Eric Laubacher to act as attorney and guardian ad litem on behalf of the minor children. The Court also scheduled the various that were then pending motions for a week of trial in Apri12008.
The day before the Court appointed Mr. Laubacher to act as guardian and attorney for counsel, CCDCFS issued a letter to the Defendant's current husband, Michael DeLuca, advising him that the Department had determined that the allegation that he spanked his stepson and offered him cigarettes to smoke and beer to drink were unsubstatiated because no evidence of abuse was found. The Hot Line Referral Form that an Agency completed when the Plaintiff called on July 12, 2007(Court's Exhibit 2) indicates that Plaintiff told the individual answering the Hot Line that Lance had had a diving board accident on July 3ra and had been taken to the hospital, but that the Defendant refused to tell him what injuries Lance sustained as a result of the fall.
The parties' testimony and the exhibits they introduced would reveal that was absolutely no substance to that claim. While it is true that the Plaintiff was not immediately told after Lance's accident that he had fallen or that he had been taken to the hospital or that he had suffered a broken arm he was advised of the incidenf as well as the child's injury the following morning. The Plaintiff knew that when he called the Hot Line because he emailed the Defendant at 8:37 p.m. on July 4^', telling lier:
This morning at 8 30 am you called me and told me that Lance had broken hisarm (sic) yesterday while going swimming. (Emphasis added) (Defendant's Exhibit AA)
The news may not have reached the Plaintiff as quickly as he wished, but there is no question &om his email and the Defendant's testimony as well as his own that the Plainfiff knew early the next moming exactly what injuries Lance had sustained. That was eight days before he called the Hot Line to accuse the Defendant and her fiancee of abuse. Under the circumstances, for the Plaintiff to have told the Hot Line worker that the Defendant refused to tell him what injuries Lance sustained was not just disingenuous: it was a complete fabrication.
It was one that the Plaintiff would not let go of as he testified two years later thatthe Defendant failed to notify him of the diving board accident until a day and a half after the
DR-H733 incident occurred. He later embellished the accusation in a complaint he filed in a Florida Court on August 8, 2008 against Gesu, the children's school. In paragraph 7 of that pleading he wrote that:
Recently, Plaintiffs name also was removed as a contact person if an emergency resuIts with the children. Such an emergency resulted last summer, when Lance, then 7 years old, fell of (sic) a high diving board from eight feet, in what cotdd have been a fatal accident. Plaintiff was not timely notified by his former wife, despite the fact that Lance sustaiued severe injur.es, inclu3ing but not limited to a broken arm. (Emphasis added) (Defendant's Exhibit TT)
The idea that Lance had sustained severe injuries in addition to a broken arm was not just a matter of hyperbole; it was what would prove to be another instance of an allegarion made without any connection to the real world.
There is no evidence whatsoever that Lance sustained any injury other than a broken arm, much less a severe one: While some fractures may be severe, there is nothing to suggest that Lance's fe11 into that category. Rather, the Magistrate is driven to he opposite concIusion based on the testimony of the child's pediatrician who described the break as a"mild injtlry" that had healed by Jnly 25, 2007. Like his claim that the Defendant didn't tell him what injuries Lance sustained; the idea that the child suffered other, severe:injuries as a result of the diving board accident is a fantasy that exists only in the Plaintiff's imagination. The accusation was no accident; the word "severe" no malapropism. It was a deliberate choice made by a man who was trained in a law school to use words as tools. They are his stock and trade. Obviously people make mistakes, substituting one term for another that they meant to use. Lawyers are not immunized against that condition by their training. The Plaintiff s language was no accident, though.. He deliberately chose to employ the word "severe" in an effort to make the incident appear worse than it was so that the Defendant's culpability would seem all the greater.
It is worth noting that when he spoke with Lance the morning after the accident Lance told him he was "OK". The PIaintiff continued to press Lance for answers, noting in a subsequent email to the Defendant that ":.. Lance would get testy and would not answer any other questions" (Defendant's Exhibit A^). That he would not had nothing to do with Lance or the Plaintiff. Instead it was the Defendant's fault because: "I got the impression that I was on speaker phone..." implying that the Defendant was listening in so that Lance was afraid to answer his questions. In the next sentence he went finther, accusing the Defendant of telling Lance "... not to discuss what happened" (Defendant's Exhibit AA}.
While there is no evidence of that, the Defendant admitted that she was in the room when Lance and his father spoke on July 4`h. The conversation, as she described it, was "upsetting". She heard Lance saying to the Plaintiff that it wasn't the Defendant's fault, it was an accident, something that the Plaintiff was not willing to accept because he pushed Lance to the point that
DR-H733 Lance threw the phone across the room and told the Defendant that the Plaintiff said that she was a bad mom and that she doesn't care about him.
The conversation with Lance fallowed one between the parties in which, according to the Defendant, the Plaintiff berated her; telling her that the accident was her fault that Lance could have been killed, that she would have his blood on her hands and that she should not be around children. The Defendant also testified that Lanca did not want to speak with the Plaintiff after the two spoke that morning. She repeated the same story to Ms. Blue, a social worker who would enter the picture on 7uly 12, 2007 when the Plaintiff called the Cuyahoga County Deparfanent of Child and Family Services (CCDCFS}.
Under other circumstances it would be easy to disregard the Defendant's testimony as nothing more than partisan propaganda because it comes from a party in the midst of a custody battle. There is no reason to do so in this case and every reason to consider her description of the events of the moming of July 4`^' both accurate and credible. Tt not only find corroboration in the testimony of her husband, but 'rt mirrors the Plaintiff's accusations about the Defendant's failure to be present when Lance fell as well as his constant exaggeration of the child's injury and focus on how terrible the situation might have been, i.e Lance could have been lcilled. The Plaintiff is no position to challenge that conclusion as he made the same claim about Lance possibly being killed in an email to the Defendant (Defendant's Exhibit AA) and when he spoke with Sister Linda (Defendant's Exhibit KK). Further, the allegation fits into the Plaintiff's overall view of the Defendant; that she is cold, unaffectionate and doesn't care about the children.
He was correct, though, that the Defendant's then fiancee (later husband), Mike DeLuca, had spanked Lance because Mr. DeLuca admitted during the trial that he had given Lance a swat on one occasion. There is, however, absolutely nothing in the record to suggest, iet alone establish by a preponderance of the evidence, that he physically disciplined the child more than that one instance or that the discipline was unreasonable or abusive. If there was anything unusual about what happened it was the irony of the situation: Mr. DeLuca gave Lance a swat because he had hit a playmate on the back with a toy sword. None of fhe adults associated with this matter seemed to have grasped the paradox of swatting a child as punishment for hitting a friend, but that doesn't matter. The only thing that is important is that there is no evidence that Mr. DeLuca abused Lance when he spanked him that one time and absolutely none to support the Plaintiff's allegation that Mr. DeLuca offered beer and cigarettes to Lance.
That there.is no such evidence did not deter the Plaintiff who continued to make the same allegations when he testified two years later. He was especially incensed that Mr. DeLuca had spanked his son. While the Plaintiff's attitude is understandable, there in no law in Ohio (and the Plaintiff did not point to any Virginia statute) that forbids a stepparent or even a live-in boyfriend or girlfriend from disciplining a child. Neither is there any provision in the party's divorce decree that declares that they and only they can physically discipline the children. In the absence of any such law or agreement between the parties Mr. DeLuca did nothing wrong when he gave Lance a swat. By the same token, the Defendant did nothing wrong by not chastising Mr. DeLuca for disciplining Lance.
DR-FE733 This is not to say that a parent or a steppazent can physically discipline a child to the point that it is abuse. The State of Ohio for sure (and probably the State of Virginia also} recognizes that there is a line between legitimate physical discipline and abuse. In spite of the Plaintiff's repeated claims that Mr. DeLuca abused Lance by spanking him he offered no evidence to support those claims or ever made any effort to; either in or out of the court room. The allegation, like so many of his other claims, was simply a mantra that the Plaintiff repeafed over and over as if by doing so he could make someone else believe what he had come to accept as the truth. In the absence of any evidence to support those claims Ms. Blue did not believe them and neither does the Magistrate. Instead, the undersigned concludes that the allegations against Mr. DeLuca, especially thase that he offered beer and cigazettes to Lance are utterly baseless.
For all of hss complaints about the Defendant and Mr. DeLuca, when the Plaintiff calied CCDCFS, the Hot Line Referral Form states that he told the worker who answered the phone that:
The basic needs of the children are being met as far as the caller knows However, the caller has been told by a third party that the children have played outside unsupervised, but no other details were known. (Court's Exhibit 2)
On the bottom of the same form the worker wrote:
Note: The caller stated that he is an attorney. He requested that our agency expedite an investigation, because the mother is marrying her paramour tomorrow. They will be going on a honeymoon, and the caller does not know who will care for the children. (Court's Exhibit 2)
The Defendant believed that this was the impetus for the Plaintiff's call to the Hot Line; a calculated effort to use the Agency to ruin her wedding. Considering the timing of the call, the fact that the Plaintiff never indicated when Mike DeLuca was supposed to have spanked Lance or offered him beer and cigarettes, a void that the Plaintiff never made any effort to frIi, and the request that CCDCFS expedite the investigation because of the impending wedding, the Magistrate shares her suspicion.
The Plaintiff, of course, would never admit that he called CCDFS on 3uly 12, 2007 for those reasons. He, in fact, testified that he called CCDCFS the week before, but the record clearly does not support that statement. The call was made the day before the wedding. At that point he had not spoken with Lance since the Morning of Jttly 4`^. There is absolutely nothing in the record that hints much less establishes that the two discussed anything other than Lance's fall the day before. The Plaintiff never mentioned learning at that time that Mr. DeLuca had spanked Lance or allegedly given him beer and cigarettes. He certainly can not argue that he was unaware that Mr. DeLuca had spanked Lance since the two meri had discussed the issue the night of the Gesu Christmas Pageant the previous Christmas. In view of the record it is difficult to accept any explanation for the Plaintiff's call to 696-KIDS other than to disrupt the impending wedding of which he was well aware.
10 DR-H733 The Plaintiff wouid change his opinion about the children's needs being met when he testified during the trial. lt was a necessary step taken in order to make his claims about the Defendant during the periad leading up to his call to CCDCFS credible. To do that he disavowed telling the Hot Line worker that: "The basic needs of the children are being met..." when he testified. The statement, he told the Court, was a"word choice" by the person who wrote up the report. Incredibly, he added that he did not know what the words "basic needs" mean. It was an utterly implausible statement from a man who graduated from both college and Iaw school; a man who has two children and spoke proudly of what he did for them while at the same time was highly critical of his ex-wife's parenting abilities and who has repeatedly expounded at length on her faults as a parent and her failure to provide for the children's needs.
Given the Plaintiff's accusations it is simply unfathomable that he was not able to define the phase "basic needs" as it applies to his children. The Magistrate finds, instead, that the Plaintiff's "ignorance" and his attempt to disavow a statement that undercut his position are part of a pattem; one that leads the undersigned to afford his words little if any credibility.
It is of interest that in raising the alarm about Mr. DeLuca's alleged misconduct the Plaintiff was all too willing to believe whatever the children supposedly told him. He adopted the same stance with regard to many of the allegafions that he lodged against the Defendant. Yet, when the Defendant claimed that the children complained in any way about him, the Plaintiff denounced those claims; asserting that those were either blatant lies made up by the Defendant in order to win the custody fight he launched or words that she put into tlre children's mouths for the same purpose. It never seems to have occurred to the Plaintiff that he cannot have it both ways. The children cannot be 100% truthful when they support him and 100% lying when they don't. That especially cannot be the case where in aimost every case there in is no extrinsic evidence to corroborate the statements the child ailegedly made about Mr. DeLuca and their mother. The Defendant likewise adopted the same position, but more often than not she was able to produce independence evidence to support her claims of what the children said. Her te^timony, in other words, is far more credible that the Plaintiff's.
As required by law, the Plaintiff's complaint was referred to a CCDCFS social worker, Ms. Blue, wha investigated the matter. As part of her investigation the social worker interviewed each child sepazately as well as the Defendant and her new husband, Mr. DeLuca. Ih her report Ms. Blue noted that:
Mom reports that the children's father has called Lance at least twenty-five times questioning him about the diving board accident. Mom reports that Lance has tried to explain the best he knows how, but this is not good enough for Dad. Mom reports that the child is refusing to tatk with his Dad because he is tired of talking about the same thing over and over again. Mom reports that Dad was very abusive to her both physicatly and verbaliy throughout the marriage. Mom reports that she is still frightened of the children's father because he is a lawyer and she never knows what
11 DR-H733 -^ ' to expect from his abusive behavior...SW asked Mom is she has been letting the children visit with their father, she said no because she is afraid that Dad will no# return the children to her, and he would turn the children against her...mom kept telling SW that the children father is an attorney and she fears what he is using this interview for. (sic) (Court's Exhibit 2)
The investigation also involved a face-to-face interview with the Plaintiff on September 10, 2007 in which he advised the social worker that Lance had been left in the care of an underage babysitter when the accident that resulted in his broken arm occurred. It was an allegation that the Plaintiff would make over and over, at one time stating_that the babysitter was only 12. He offered not one iota of evideace to support that assertion, either to Ms. Blue or to the Court. Tn addifaan, he reiterated h"s claim that Mr. DeLuca offered Lance cigarettes and beer and added that his:
...ex-wife leaves the children unsupervised and the children run across the street in University Heights. He said that University Heights isa high motor cycle area and is very dangerous in University Heights. He also said that there is a lot of sexual offenders in the area and his ex-wife lets the children walk around unsupervised. He then reported once again tliat his ex-wife has cut off all ties with his regarding his children. .. He said that he had his daughter videotaped and she was getting in a convertible car without a seatbelt. He said his ex-wife has a lack of concern about safety, health, and supervision.
And even though slightly more than two months had passed since he filed his motion to modify parental rights and responsibilities the Plaintiff told Ms. Blue that:
... the children's mother is mentally abusing the children by saying that he is trying to take them away from her, and that is not the case. (Court's Exhibit 2)
It is an astounding statement from someone who had just launched a battle to gain control of the children so he could remove them from their mother's house because of her alleged unsuitability as a parent.
In spite of the Plaintiffls repeated claims that his ex-wife and her husband.were abusing and neglecting the children, Ms. Blue ultimately concluded that those allegations were unsnbstantiated, writing that she did not find anything that would lead her to conclude that any physical abuse had occurred in the Defendant's horne. She went on to add that:
Step dad (Michael DeLuca) appears to be a positive role model for the children as evidenced from the conversation that was held between the S W and Alleged Offender. This Assessment Rating for this
12 DR-H733 family is low. Safety Assessment Rating for this case ftnds the children safe in the home. The Case Disposition for this case is Physical Abuse Unsub, this case will be closed without fiu ther involvement. (Court's Exhibit 2)
Besides her conclusions and noting what the parties told her, Ms. Blue's report is significant because of her description of the Defendant's home and the children's relationship with their mother and Mike DeLuca. Those findings would significantly undercut the Plaintiff's allegations about the children's view of Mr. DeLuca as well as provide valuable evidence of the children's interaction and intemelationship with their parents and their adjustment to home.
Ms. Bi_ue added little to what was already in her report when she testified. One of the things that she did mention was that when she first interviewed IsabeIle at the family home in University Heights, lsabelle was sort of frightened and sat on her mother's lap. The situation changed radically when the social worker returned on September 20, 2007; at which time Isabelle, who had been playing with some friends in the front yard, walked up to the social worker and spoke with her without any apparent reticence. Ms. Blue also testified that when she initiaIly spoke with Isabelle the cluld did not express any fear of her father, but added that she did recall Isabelle saying that she was afraid that her father would take her away from her mother.
Aithough she was there to investigate an entirely different allegation, Ms. Blue asked Lance if he had ever been sexually abused. It was, she testified, a standard question that she is supposed to ask in all investigations. Lance, she reported, responded in the negative to the question (Court's Exhibit 2, Pg 17). When she testified at triat Ms. Blue stated that Lance not only said that he had never been sexually abused, but atso told her that no one had touched him inappropriately. That was not true, as Lance had told his parents at separate times that Eduardo, a 10 year old boy, had performed oral sex on him or had touched him inappropriately when he abused Isabelle while the family was living in Virginia. Finally,lvIs. Blue told the Court that the Defendant never said that the Plaintiff was sexually abusive of the children. That said, the Defendant did tell Ms. Blue that she was not allowing the Plaintiff to see the children because , she was afraid that he would take them from her. On cross-examination the Defendant would subsequently acknowledge that the Plaintiffhad always returned the children.
While Ms. Blue was condncting her investigation, the Agency opened a second one on September 12, 2007 as a result of a phone ca11 it received &om the children's pediatrician, Dr. Kelley Joyce. She had been the children's physician since they moved to the greater Cleveland area from Virginia in 2004. Dr. Joyce's notes from November 2004 revealed thaf Lance became "combative" when she attempted to examine his genitals. He was, however, coope.rafive throughout the rest of the exam and, according to the Defendant, had not displayed any such behavior either at school or at home where he was cooperative (Court's Exhibit 4). Dr. Joyce's notes fixrlher indicate that she saw Lance twice in November 2005, once in 2006, and on March 9, 2007, before she received a phone call from the Defendant on September 12`^' of that year informing her that the night before Lance had disclosed that the Plaintiff had kissed him all
13 DR-H733 over and while he, Lance, was in the bathtub the Plaintiff had played with his privates. Dr. Joyce had the Defendant bring Lance to her office the next day where she examined the child.
According to the Hot Line Referral Form, which was part of the record created by the Agency (Court's Exhibit 1):
The mother, Stephanie Luck, called the referent after her son, Lance Klayman, disclosed last night that his father had sexually abused him: While they were getting ready for bed, Lance tried to phone his father, as he usually does. He did not answer. Lance told his mom he is glad that his dad is not part of their family. She told him he is. Then he said he doesn't like his dad. When his mom asked why, he said, dad has secrets with me. She told him it was okay to tell her, and that he is safe with her. He said that his dad had played with his privates. It happened in Cleveland, but the time frame. is unknown. He said he was in the bathtub and his dad was in the bathroom. The mother asked him was he washing you, and he said no. He played with them. He said his dad showed him his privates too, and they had hair on them. Lance also told his mom that he does not like to spend time with his dad because he kisses him all over.
The caller did an exam, but there was nothing found. Lance was reluctant to show the referent his privates. He said it was gross, but his mother persuaded him too. The referent questioned Lance alone, saying that at this age, she typically speaks to the kids alone. She said sometimes when kids are reluctant to show their bodies, someone has done something to them. She asked if anyone had. He denied it. He did not have good eye contact and was fidgety. She spoke to him about other things. Then she asked about his dad. He said he doesn't like him because he is mean to his mom. He sued her.
The caller states the father, Larry Klayman is a well-known attomey. He has sued $ill and Hillary Clinton and was Jennifer Flowers attorney. He eveh sued his mother. When they were divorcing five years ago, he was trying to get custody. When the court ordered a psychiatric evaiuation, he agreed to give the mom custody and just have visitafion.
He showed up at Lance's school the other day. The mother had already told them that he. is not allowed to take him. Out of nowhere, he told the head nun at the Gesu school, that Lance was given orai sex by another chiid when he was 2.
14 DR-A733 The mother said something about her daughter, Isabelle, 10, being fondled by her dad when she was 4 or 5. It is unknown if it was investigated. She got her into play therapy. It came out then. She said her dad had taken baths with her and she was made to wash his privates. He would sleep with her in her bed, and when she would wake up in the morning, she would feel his erection on her back.
The mother left the dad because he was physically and verbally abusive toward her.
The case worker to whom the matter was referred, Ms. Wingler, conducted an extensive investigation that included speaking with the children's counselor, Dr. Karen Bardenstein (who didn't testify). Ms. Wingler's report of her contact with Dr. Bardenstein {Court's Exhibit l, page 100} states that: .... most of what she had been told so far about this case has been from the mother. She said she has seen Lance four times and Isabelle once. She said she has been addressing with him allegations involving the father touching him inappropriately and said Lance was uncomfortable to talk about this but has wanted his mother to tell her what he has reported. She said "both of the chiIdren seem to be quite frightened of their father and quite estranged from him. She said they seemed to feel very safe and appear to be very attached to their mother and step father. She said she had no contact with Mr. Klayman. She said she had spolcen to one of the children's previous therapists, Dr. Gil in Washington, who she said has a national reputation on counseling abused children and said Dr. Gil had contact with the father and reported many concerns based on her contact with the kids and the father. She said the father was supposed to be psychiatrically evaluated sorae time ago but has not as of yet. She said that she supports this taking place. (Emphasis added)
There is something for both parties in that portion of Ms. Wirigler's report. For the Defendant, there is corroboration of her claim that the Plaintiff gave up the battle for the children rather than submit to a psychiatric examination as well as corroboration that she had genuine reasons to be concemed about the Plaintiff s behavior. For the Plaintiff there is evidence that the allegation that he had improperly touched Lance came from his mother, not the child who _ refused to say that the Plaintiff did anything improper. There might have been more had the Plaintiff chosen to participate in the investigation.
15 DR-HT3 If he had, he could have shown Ms. Wingler the pictures of he and the children that he introduced during the coutse of the trial; pichzres that show happy children (Plaintiff's Exhibits 2,3,4,5,12,13-21, 28, 29 arid 102}). jOf those pictures, two were baby pictures of Lance (Nos. 19 and 29} while three from Exhibit 102 depict Isabelle swimming with a dolphin,) They fail to evidence any of the fear or reticence to be with the Plaintiff that Dr. Bardenstein noted or to which the Defendant or her husband testified.
A$er interviewing Isabelle, Ms. Wingler wrote:
SW asked her about how her relationships were with her family members and she said, "I have really good relationships with everyone in my family except my dad." SW asked her when was the last time she saw her father and she said, "the week he came to my school and gave me a suitcase full of toys and I don't like it when he comes to my school. He was mean to my principal and he made me very upset when he came to my school. I don't want him coming to my school to see me. I don't want him coming to see me at all." SW asked her why she felt this way about seeing her father and she said; "he is just mean to everyone. My mom, Mike, my principal, me, Lance, and he tries to kiss us {her and Lance) all over our bodies and we don't like that." She then reported remembering going to see a counselor years ago, when she was living in another state, because she said she remembered "something" about washing her dad's privates but could not recall any details of this for SW. SW asked her if this happened once or more than one time and she said she wasn't sure. SW asked her if her father had ever touched her body in a way that made her feel uncomfortable, other than the kissing she reported, and she said, "I can't really remember but I know I washed his privates when I was little because my mom told me that's what I told the counselor and I believe her because she wouldn't lie to me about this." S W asked her where she and Lance would sleep while visiting with her father and she said, "mostly in bed with him and we didn't want to. He only wouId wear his underwear and we would tell him we didn't want to sleep with him but he would make us anyway." SW asked her if anything would happen while they were in bed together that made her feel uncomfortable and she said she didn't think. so but couldn't remember for sure. S W asked her if she would ever take showers or baths while visiting her dad and she said, "sometimes." S W asked her if she would bathe alone and she said yes. She then said, "I really just don't want to see my dad anymore. I don't want to talk to him on the phone. I don't ever want to live with him and I want him to stop hurting all of us." She denied any other incidents of sexual abuse. (Court's Exhibitl)
16 DR-H733 Again, there was something for both parties in Isabelle's conversation with 1VIs. Wingler. For the Plaintiff, there was proof in Isabelle's statement that she didn't remember anything and that whatever she was repeating came from the Defendant who, the Plaintiff alleged, had manufactured the allegations with which she had tried to smear him during their divorce. For the Defendant, there was confirmation of what she had cailed the Plaintiff's "bizarre" behavior in her recitation of how he would sleep with Isabelle while in his underwear and kiss her and Lance all over, which they didn't like.
Ms. Wingler also interviewed Lance, writing afterward:
S W asked him about his relationships with those he lives with and he said, "good." S W asked him ahout his father and he 1_ooked down and then proceeded to get up out of his chair and then kneeled on the ground and laid across the chair, facing away from SW. SW.asked him if he felt more comfortable talking to SW while he sat on the floor and looked away and he said yes. S W asked him again about his dad and when was the last time he saw him and he said, "at school and he was no mean to my principal. He made my cry. He told my principal to stop giving him all this nonsenseP' S W asked him what that meant and he said, "I don't know b.ut he said it really mean!" S W asked him about his relationship with his father and he said, "I don't Iike him. He is so mean to everyone. He slammed my mom against fhe window and he hurts everybody." S W asked him if he ever told his mother that he and his father "have secrets" and he said, "yes I did because my dad have secrets with me that are so mean and nasty." SW asked him to explain that and he said, "he was touching my privates." SW asked him where his "privates" were on his body and he said, "the part I pee out of." SW asked him when this happened and he said, "I think in Florida but I don't.know for sure if it was just in Florida. I think in Cleveland it happened too." S W asked him if Tsabelle was around when he was touched by his father and he said, "yes, she was there but not around us. He did it once in the bed and. she wasn't in the bed with us. He slept naked and I saw his privates and he touched me in the bathtub and he wasn't washing me when he did it!" He then went on the report when his dad touched him in the bathtub, his father was also not wearing any clothing and that neither of them said anything to each other. (Court's Exhibit 1)
At the conclusion of her investigation Ms. Wingler completed the "SUMMARY OF INVESTIGATION" form, checking the boxes that read: "INDICATED SEXUAL ABUSE, CIRCUMSTANTIAL EVIENCE NEEDING FURTHERCONFIRMATION". On January 2, CCDCFS issued a letter notifying the parties of that conclusion, which was reached without any direct input from the Plaintiff who scrupulously avoided being interviewed. Although the Plaintiff would telI Ms. Wingler in an email dated January 28, 2008 that: It was never my
17 DR-H733 intention not to meet with you..." the record indicates otherwise. Specifically, Ms, Wingler noted on January 2, 2008 that:
Father resides in Florida. S W has had numerous phone and e-mail contacts with him since October 2007 regarding him coming to Ohio to be interviewed. S W offered him the opportunity to do this via phone call but he stated he wanted to be interviewed in person with his attomey. S W gave him ntunerous opportunities to . schedule an appointment which he did and then canceled. SW emailed him schedule for the weeks of December 10^' and 17tn 2007, giving him specific days and blocks of time SW was available and his attorney, Roger Kleinman responded to S W on 12-11-07 stating "he woul_d get back to SW re: appt. for interview. As of 1-2-08 SW has not heard from father or his attomey. (Court's Exhibit 1, page 146)
Even though there is no question from that paragraph or the correspondence in Ms. Wingler's records (Court's Ezdzibit 1) that the Plaintiff didn't speak with her abottt the children's allegations at any time prior to January 2, 2008 the Plaintiff nonetheless testified that he did talk to Ms. Wingler before she issued her report and that he told her the sex abuse didn't happen. After reviewing the Agency's records the Magistrate concludes that the FlaintifPs assertion to the contrary, he did not speak to Ms. Wingler before or after she made her determination that abuse was indicated and that he deliberately chose not to be interviewed.
The Plaintiff successfully appealed the indicated finding; the supervisor who was in charge of the review decidirig tha# the report was unsubstantiated. She informed Flaintiff s counsel of her decision on May 2, 2008, telIing him that:
The question for this appeal is whether, based upon the totality of the information, this matter should be consideied as an"indicated report" or an"unsubstantiated report." While reasonable minds could differ in circumstances when a young child recounts an event which occurred some time ago, my conclusion is that the allegations in this particular circumstance must be deemed "unsubstantiated". (Plaintiff's Exhibit 22)
The Plaintiff would trumpet the child's denial that he had been touched in his private area as weIl as CCDCFS' final detemunation as evidence that the Defendant created the aIlegation out of whole cloth in an effort to forestall his attempt to modify parental rights and responsibilities and to slander him in revenge for his having filed that motion. He also touted the September 17, 2008 decision by the Assistant Prosecuting Attorney to whom the matter had been referred by the detective.froin the County Sheriff's Department wfio was investigating the alleged incident that in the prosecutor's opinion there was insufficient evidence to present a case to the Grand Jttry at that time because he felt:
I8 DR-RTi3 The disclosure ofpossible sexual "abuse is very limited and appears to occur during normal bathing on a single occasion. The Department of ChiIdren and Family Services originally ruled the allegations indicated but after fiuther review ruled that the allegations were unsubstantiated. (Plaintiff's Exhibit 23).
Neither the Assistant Prosecuting Attomey nor the senior supervisor from CCDCFS testified during the course of the trial with the result that is it impossible to determine what material either individual considered during their reviews or the thought process that led them to their respective conclusions. It is cleaz from the material compiled by Ms. Wingler, though, that she found more than sufficient evidence to support her conclusion that the allegations were indicated.
Since the social worker's conclusions were ultimately overruled by her supervisor and because he was not prosecuted, the Plaintiff triumphantly concluded that he had never sexually abused his children and that, in fact, the Defendant had made up the allegation as part of the "trial strategy" that she employed in this matter. It was a theme to which he would return over and over during the course of these proceedings; accusing not just the Defendant of fabricating the allegations against him, but her counsel of acting inappropriately and unethically as well because her counsel failed to adequately investigate the allegations and not only coaclude that they were false, but continued to press them herself.and allow the Defendant to press them as a basis for denying Plaintiff access to his children. (See for example Plaintiff's December 24, 2008 email to Dr. Mark Lovinger, Defendant's Exhibit EEE.)
The issue of what the Deparfinent of Children and Family Services did or did not do or the conclusions that its personnel arrived at is a complicated one for many reasons. As indicated earlier in this discussion, the supervisor who was assigned to conduct the appeal of the investigating social worker's conclusion that the aIlegations of abuse were indicated did not testify so it is impossible to know on what she based her decision to overttun the social worker's conclusions. The only thing of which there is absolute certainty is that the Defendant and her counsel were excluded from the appellate process. The Plaintiff was present, but he remained silent throughout the proceeding. It was in keeping with the strategy he had followed from the beginning of the investigation.
Instead, he pointed to his son's failure to disclose to the pediatrician that he had been touched inappropriately as well as the statement his daughter made to the social worker thaY her mother told her that her father had touched her and the result of the polygraph test that he took in October 2007 to establish both his innocence of the charge that he inappropriately touched his son and that the Defendant made up the allegation in a deliberate effort to keep him from seeing his children. Those factors played no parC in the conclusion by the investigating social worker that the allegation of abuse was indicated. It is not clear from the supervisor's decision overruling the social worker's frnding how much weight, if any, she gave to those factors.
The important point is not that the Cuyahoga County Department of Children and Family Services initially determined that the allegations of abuse were indicated and then subsequently determined that they were not, but rather that this Court is not bound by any determination the
19 DR-R733 Agency may make. It doesn't matter if CCDCFS concludes that the allegations in a particular case are indicated or substantiated or unsubstantiated. Where the parties are before the Domestic Relations Court, as they are in this case, it is the Court's obligation to conduct an independent analysis ofthe evidence as determined by the Court and reach an appropriate conclusion based upon that evidence. That process involves looking not just at what the parties did or said during the course of the Ageney's investigation, but also reviewing the aIlegations against the background that preceded the alleged disclosure by Lance in September 2007 and the testimony and exhibits presented during the course of trial.
The Plaintiff sought just such a review because he believes that it would not only exonerate him s'vnce it would establish beyond any question that not only is he innocent, but it would also prove that the Defendant either made up the allegation or coerced the child into making the statement. He sho^.ild not have been so quick to seek such an examination.
One of the reasons he should have been more cautious is that the results of the polygraph, which may have played a significant role in the supervisor's decision to overhzrn the initial conclusion that the abuse allegations were.unsubstantiated, are not entitled to any weight whatsoever. The Magistrate takes judicial notice that the results of polygraph examinations are not ordinarily admissible in Ohio as well as in rnost jurisdictions in the United States for a number of reasons that need not to. be discussed at this time. It is enough to note that the system, which is designed to measure certain physical changes in an individual's body in response to certain questions, has yet to pass the Daubert test (Daubert -vs- Merrell Dow Pharaceuticals, 509 us 579, 113 S CT 2786, 125 L Ed 2d 469, 1993).
Beyond questions centering on the test's validity, there are issues concerning the examination that the Grievant underwent. Specifically, he was asked if he had "sexually abused" either his son or his daughter and whether he had ever "touched their private parts in an inappropriate manner". Both sets of questions aliow the PIaintiff to interpret the words such that if he did not believe what he did was inappropriate or constituted sexual abuse he could answer "No" even though he had touched Lance's penis and the test might very well show no deception.
This brings up the other problem with the exam, which is that the examiner provided the answers ta just four questions. He did not submit the raw data so it cannot be independently interpreted. More importantly, neither the Court nor anyone from CCDCFS nor the Detective who investigated the matter haue any idea what was discussed between the Plaintiff and the examiner prior to the beginning of the test. The undersigned takes judicial notice that an individual does not simply walk into a polygrapher's office and begin answering questions without an extensive interview first taking place. The interview tells the examiner how to phrase the questions comprising the test.
It is especially key in this case to know exactly what the conversation was between the two in view of the way the cluestions were phrased, but also whether the examiner was aware of the background of the Plaintiff's relationship with the children, which would have required that he speak not just with the Plaintiff, but also consider outside materials and sources as well. That should have included speaking with the Defendant or at least reviewing the notes she made dnring the period leading up to the Virginia divorce. She submitted thern to the social worker
20 DR-H733 who was assigned to investigate the abuse allegations (Court's Exhibitl). Read as a whole they reveal that on more than one occasion the Plaintiff act in a grossly inappropriately manner with the children. His conduct may not have been sexual in the sense that he intended to or did deriva any sexual pleasure from it or that he intended tbat the children would. That, however, does not mean that he didn't engage in those acts or that his behavior was proper.
In that regard it is important to note that the Plaintiff has always loudiy declazed that he had never sexually abused the children. However, he never denied in Court that he engaged in the conduct outlined in the Defendant's notes or that he touched Lance's genitals when he bathed him. Further, for all of his breast beating about his innocence the record reveals that the Plain6ff scrupulously avoided being questioned by anyone from the Cuyahoga County Department Of Children and Family Services or from the Sheriff's Department about the allegations.
And for all his protestations of innocence; for all of his claims that he has never done anything inappropriate with the children; never behaued zn' an inappropriate fashion with them or touched them in an inappropriate manner the Plaintiff admitted while on the witness stand that he repeatedly invoked his Fifth Amendment right against self incrimination when he was deposed: refusing to answer whether he had ever slept naked with the children, whether he had ever touched Lance's private parts in the bathtub, if he had ever touched Lance's privates in the bed, if he had ever taken a shower with the children, if he had ever insisted that one or both sleep in bed with him and whether the children protested that his kisses them too much. Even more disturbing, the Plaintiff invoked his Constitutional right against self-incrimination when asked what he thought inappropriate touching was. It was, by any measure, a simple question; one that called for the Plaintiff to define what most adults would consider a commonly understood phrase. It was an easy task, yet the Plaintiff steadfastly refused to undertake it.
During the course of the trial the Plaintiff acknowledged that he had invoked his Fifth Amendment right not to answer those questions, but then added that he first denied those allegations and then and only then invoked his Fifth Amendment right against self-incrimination. The Magistrate can put no credence in that staternent.
The Plaintiff is a lawyer licensed to practice in two or three states and the District of Columbia. He is proud that he has been involved in major cases including suits against powerful domestic and international adversaries as well as the government. It is impossible to believe that someone with his experience, with his training and his background would not have known that once he answered the questions, once he denied engaging in any of the activity he was asked about he could not invoke his Fifth Amendment right against self incrimination because he had waived it. It is. especially impossible to believe that he would not have been aware that he would have waived the privilege once he denied the aliegations as his web site at the time proclaimed that one of the firm's areas of expertise was criminal law (Court's Exhibit 1).
The Plaintiff had every right to invoke his Fifth Amendment right against self- incrimination. If his were a criminal proceeding, that would be the end of the matter. Neither the Court nor a prosecutor could comment on o^ draw any inference from the Plaintiff s decision not to answer questions. This, however, is a civil proceeding. The rules that control the response to a party invoking his or her Fifth Amendment right against seIf-incrimination in a criminal case do
21 DR-R733 not apply here. Instead, the Court may draw an adverse inference from a party's decision not to respond to legitimate questions, and there is no way for the Plaintiff to argue that the Defendant was not pursuing a legitimate Iine of inquiry when her counsel asked about his behavior with the children. The Plaintiff chose not to answer those questions. That was his right. The Magistrate has the right #o be concerned about that decision. And, as noted in the preceding paragraph, the Magistrate finds the Plaintiff's failure to define what he believed constituted inappropriate touching especially unsettling.
In view of all of the evidence in this matter the Magistrate must conclude that throughout the period of time while the Sheriff's Department and the Department of Children and Family Services were investigating the complaint that he had inappropriately touched Lance and while he was appealing the indicated determinaticn as well as when he was deposed in 2008 the Plaintiff scrupulously avoid answering any questions concer,^ing his behavior toward the children. In view of that history as well as Miss Wingler's findings and the material she cited in support of those findings, the undersigned concludes that the Plaintiff's protestations of innocence to the contrary, the Defendant had legitimate reasons to be concemed about the children's safety and the Plaintiff s conduct towards them, especially in light of his history as memorialized in her notes that were part of Miss Wingler's records (Court Exhibit 1).
The Defendant's notes along with Lance's allegation indicate that the Plaintiff acted inappropriately at times because of poor boundaries coupled with a sense of entitlement. Those attitudes are reflected in a series of letters between the parties' respective counsel beginning on November 22, 2005 and continuing through March 5, 2007. In the first of those Defendant's counsel complained that the Plaintiff:
... refuses to acknowledge certain boundaries and liinitations with regard to his former wife. , As such, I am hereby requesting that you advise Mr. Klayman that he is no longer welcome to enter Ms. Luck's residence.
After passing on the Defendant's complaints about the Plaintiff's repeated telephone calls, especially between 7:00 and 8:00 a.m., Defendant's counsel wrote:
The most serious issue which we need to discuss involves Mr. Klayman's sleeping arrangements. Apparently, Mr. Klayman has a one-bedroom aparhnent. He sleeps in the same bed with both Isabelle and Lance when the children spend the night at his residence. It is my further understanding that this practice also occurs in Florida, although there are two bedrooms at Mr. Klayman's condominium.
Finally, Defendant's counsel noted:
Unfortunately, until such time as Mr. Klayman obtains suitable sleeping arrangements, Ms. Luck will not agree to any further
22 DR-H733 overnight visits by the children. Should Mr. Klayman dispute my client's decision...
Finally, Mr. Klayman has, once again, provided Isabelle with a cellular telephone. Ms. Luck has repeatedly told Isabelle that she is welcome to use the telephone with Mr. Klayman, or when she is in his home; however, Ms. Luck does not believe that an 8 year old child should have a cellular telephone and, as such, will not allow the telephone to be operational when Isabelle is in her custody. (Defendant's Exhibit G)
The issne of the cell phone wotrtd Ioom lazge for the Plaintiff who would use the Defendant's "confiscation" of the cell phones as one of the basis for the suit he filed against the Defendant, her husband and her mother in a Florida court.
Twenty-four days later Defendant's counsel sent a second letter to Plainfiff's counsel regarding the Plaintiff's behavior. In that one the Defendant's counsel wrote:
Unfortunately, it appears that Mr. IQayman simply will not honor or respect Ms. Luck's wishes with regard to her home, and her privacy. Specifically, it is my understanding that when Mr. Klayman picked up the children last Friday (December 9, 2005), and when he returned the children on Sunday evening, Mr. HIayman insisted on coming into to Ms. Luck's home, lingering around the home and refusing to leave when asked to do so by my client...
Additionally, there will be no further tolerance of Mr. Klayman's trespassing onto my client's properry; please advise Mr. Klayman that if he steeps into Ms. Luck's home, the police will he notified and further legal action wili be taken.
T am disappointed at Mr. Klayman's tofal lack of respect for Ms. Luck. (Emphasis added). (Defendant's Exhibit F)
A little over five months later Defendant's counsel sent yet another letter to Plaintiff's counsel in which, along with discussing Isabelle's upcoming Communion, she demanded that Plaintiff's counseI: Please also remind Mr. Klayman that he is not to come to Ms. Luck's home after the First Communion. Unfortunately, based on Mr. Klayman's most recent conduct, he is not welcome to attend the eelebration at my client's residence. Please inform Mr. Ktayman that if he does return to the property, the police will be summoned and charges will be pursued. (Defendant's Exhibit E)
23 DR-FI733 On March 5, 2007, Defendant's counsel wrote directly to Plaintiff about certain events that she alleged took place at the Defendant's residence when the Plaintiff last had the children. Specifically, Defendant's counsel wrote:
1VIs. Luck has relayed to me a number of unfortunate incidents which apparently occun-ed while Isabelle and Lance were last with you in Florida. Apparently, you have provided "R" rated movies to the children, encouraged them to not be "prudish" and to watch the movies, and urged the children not to tell their mother about the movies. Specifically, it is my understanding that you have provided the children with a"Geisha" movie as well as "Miami ^Tce." Additionally, an incident was relayed to my client when your friend; Alice, took your young daughter to'Victoria's Secret and purchased thong underwear for her. It was also relayed to my client that your friend and you encouraged Isabelle to wear this underwear as her current underwear was "old ladyish" and "pulled up to (her) neck."
While these are only a few of the incidents relayed to me, Ms. Luck is extremely concerned about your choices for the children and what you, apparently, deem appropriate parental behavior. As such, Ms. Luck is hereby requesting that you enroll in a parenting class to assist you in learning what is age appropriate for your children, and to assist you in your parenting skills.
Unfortunately, until there is some assurance that yaur choices as a parent are more appropriate, Ms. Luck is not comfortable in allowing the children to proceed to any type of overnight visitation with you. (Defendant's Exhibit D)
A little over two months later the Defendant reversed herself, her counsel noting that Defendant had agreed that the children would spend Memorial Day weekend with him, but specifying that he had to pick the children up from Pizzazz, a restaurant in Fairmount Circle in Universitp Heights. In spite of previous letters from Defendant's counsel complaining abou# Plaintiff entering her home without permission and refusing to leave, the Plainfiff seemed unable to comprehend why he couldn't corne to the house to pick up the children, writing the Defendant that:
I intend to exercise my visitation rights next weekend and pick them up in the only place that you will allow me to, the public parking lot of Pizzazz (another method of trying to harm and humiliate me as previously documented) ... (Emphasis added) {Plairitiff's Exhibit 101)
In simple terms, he saw himself without fault. Instead, the Defendant's decision to exclude him frorn tbe house had absolutely nothing to do with his behavior, but was simply
24 DR-H733 another indication of her animus toward him and an example of her efforts to marginalize his role as the children's father. When he subsequently testified about the Defendant's decision to prohibit him from coming to the house to piclc up and drop off the children the Plaintiff was visibly angry, making it clear to the Court that he felt put upon that he had to pick them up and drop them off at a nearby restaurant.
The Defendant's decision to continue overnight visitation was based on being convinced that:
... appropriate sleeping arrangements are in place for the children, and that the other issues which have previously been topics of discussion aze no longer at issue (that is, the children viewing "R" rated movies, inappropriate and disparaging remarks about Ms. Luck, ete.) (Defendant's Exhibit C)
The Defendant's complaints about the Plaintiff's tack of boundaries, his disrespect for her, and his sense of entitlement outlined in the preceding paragraphs mirror many of the complaints that the Defendant made about the Plaintiff in the notes she typed in 2002 and 2003 that she turned over to the social worker who was investigating PlaintifPs inappropriate touching af Lance. A review of those records (Pages marked 156-173 of Court's Exhibit 1) reveal that Plaintiff, according to the Defendant, repeatedly entered her home without her consent, repeatedly refused to leave and physically assaulted her. Of greater significance, her notes contain numerous incidents of alleged inappropriate behavior reported by Isabelle to her mother.
These include Plaintiff wanting to lass Isabelle on the lips and then trying to make her feel guilty when she wouldn't (Page 157), Isabelle telling her mother that the Plaintiff slapt with her in his underwear and T-shirE and that his "belly" was poking out and sticking out of his underwear (Page 158}, Isabelle telling her mother that she sees her father's belly all the.time as well as seeing him get dressed and go to the bathroom and that she touches his belly iri the bath with her feet, telling Isabelle that she is luscious and that her "Pop Pop i.e. her grandfather is in the hospital because he hurt his pee pee", telling Isabelle that she is a"babe" (Page I65), that Isabelle had to "learn how to kiss a boy", and that she reported to her mother that she washes her father's back, tummy and privates when they're in the bath together (Page 166). Specifically, the Defendant's notes contain the following entries:
4. 5/26/02 - day LEK physically hits me.
I tell him I am living in a prison and that no one would put up with it. I tell him that he needs help - he is crazy.
He says he would think I would thank him for security and that I am an "ungrateful bitch."
2^ DR-H733 Isabelle is in back seat crying to stop. He then grabs my arm and than puts his arms around my neck and shakes me and bangs my head repeatedly against the window. He says "You really are a fucking bitch. I hate you. You are nasty."
I tell him he is hurting my neck, it's hard to breathe. Isabelle screams "Don't hurt my mommy. Don't kill my mommy. He said "Mommy made me do it."
Isabelle says "No, Daddy, God saw you and you are bad."
He releases me and staa^-ts driving home. We pull in the driveway and he puts his hand through the car radio, breaking it. He says he controlled himself because he really wanted to "beat the shit out of me."
We get inside and he shakes his bloody hand at me and makes me tell Isabelle is was half my fault. I do this so he will stop. I take. Isabelle and Lance upstairs and lock my bedroom door. He tries to open it with a knife but gives up and leaves the house.
He returns later and tells Isabelle "Daddy probably broke his hand. Poor daddy, he has to go to the hospital. Will you kiss Daddy's hand. Look Isabelle, Daddy's hand is hurt and swollen. Will you take care of your Daddy."
5/27/2002
We go down and I put a Little Bear video on for the kids. LEK says he is leaving. Isabelle puts blocks on the steps and she will block him in. LEK says "if you kiss me on the lips I won't leave." Isabelle says "No, I do not want to kiss your lips. I'll kiss your cheek."
LEK says "No, I want a kiss on the lips, no on my cheek." Isabelle says angrily "I said no kissing your lips Daddy. Mommy says I don't have to." LEK tells her "Fine, Daddy is leaving because you hurt Daddy's feelings."
I can't bear it aaymore and I tell him why don't you take what you can get - she offered a kiss on the cheek. Now she feels bad. Why are you doing this to her?"
26 DR-A733 LEK says "Why do you interfere in everything I do with my daughter. That is how I play with her. I know you have no sense of humor and never understood how I play with my daughter. You think you know it alI when it comes to kids. You never once told me I did anything right with them. Have I? Have I?" He is spitting in my face.
I say "Ok, yes you have."
LEK says "Name one instance, can you?"
I say "NO" He spits on me and ieaves.
5/28-5/29/2002 He calls me and is laughing that his hand is broken. He says "Let me tell Isabelle my hand is broken, she will get a kick out of it."
8/5/2002 LEK comes over and gets close to my face and teAs me "you better not have sex with some guy on the couch in front of our kids."
Isabelle comes back from spending night with LEK. Tells me Daddy slept with her in his underwear and T-shirt and his "belly" was poking out and sticking out of his underwear.
9(3l2002 Isabelle punches Larry and gives him bruised eye. He was "kissing me to (sic) much 1Vlommy."
9/7/2002 lsabelle tells me she sees Daddy's "belly" all the time. She sees him get dressed and go to the bathroom. (See notes).
9/8/2002 Isabelle tells me about Eduardo in the evening.
9/9/2002 I cali CPS in moming. Larry has police come.
10/2/2002 After school - Isabelie tells me she touches Daddy's "belly" in the bath with her feet.
10/4/2002 .. He follows us there and runs after Isabelle with bug spray. She tries ta run away because he is spraying it in her eyes. She is crying
27 DR-H733 and asks him to stop. I tell him to stop, the circus is inside. He tells Isabelle that "she could die if a mosquito bit her." She said she will never go outside again.
10/5l2002 We aze stiil under quarantine. He is going to Seattle for a trial. We are not to leave the house today or tomorrow under any circumstances. Tells me to watch out for malaria, make sure my doors and windows are locked at all times, tbe alarm is always on. : tell him Isabelle has a bday party. He tells me he wiil take legal action against me if I take her out of the house before the sniper is caught.
10/6/2002 LEK tells me if I send Isabelle to her preschool he will take legal action against me. We are not to leave the house until the VA sniper is found. My bodyguards will bring us all the food we need.
10/8/2002 ... LEK cails me a"liar" and tells me I will pay for "disobeying" his rules.
10/10/2002 Quarantined . . .
10/11/2002 I take Isabelle to school against LEK's wishes.
10/16/2002 LEK calls in the morning and asks "Why in God's name are you sending her to school again. You are a terrible mother." Tells me the bodyguards aze to form a human circlelshield around Isabelle when she goes into building. ..
10/20/2002 We are outside playing and LEK wa.lks up. Tells me their Red Flyer tricycles are a"piece of shit" in front of the kids. _He tells me to stay on the left side of the driveway when playing - shield them from street. .. Isabelle says "Daddy, can I take the garbage cans down with you like I do with Mommy?" LEK screams "NO" at Isabelle. . . Isabelle is crying and saying "stop yelling at Mommy. You always do"
10l22/2002 ... He tells me "if you ever talk about me fucking someone you and your mother will be so fitcking sorry for the rest of your life."
28 DR-fI773 10/23/2002 Telephone call in the morning from Larry. He repeatedly threatens me.
11/1/2002 LEK calls. He will pick up kids. I tell him I have a hair appt. but my brother Tim will be here with the kids. He says "Please tell me if you are leaving my kids alone with Tim. I have a right to be there. I have a right to know. He has no experience with kids. Make sure he knows the rules. I don't want him ±aking care of my kids like you_r brother, Chris.
11/3/2002 8 30 am - LEK drops kids off because he has a"nationat" radio show. He can't take them ... They don't behave in public and it is all my fault.
5:30 pm - LEK retums and just walks in the house. Says "Who want to go to the candy story?" Isabelle realizes I arn not going and starts screaming and kicking Larry who is holding her. She does not want to go without me and want "help". He tells me to "kiss his ass" and walks out with her and just leaves Lance.
l I/9/2002 In the morning I tell LEK my brother, Ofiver, is here. He accuses me of plotting legal strategy agaittst him. Isabelle cries for 3 hours. Does not want to go to "clubhouse."
12/4/2002 Tells Isabelle she is `LUSCIOUS." He tells her that her pop pop is in the hospital because he hurt his pee pee.
12/5/2002
LEK says to Isabelle "You are a babe." Isabelle says "I.am not a baby." LEK says "I know, you are a babe."
Before Isabelle goes to bed she asks me if Lance ever hurt Daddy's eye. She said she hurt his eye once in Florida when he said something to her she didn't like. She said she is "scared of him sometimes." I ask why. She said "he is so big"
12-14-2002
29 DR-H733 Isabelle says to me "I am scared of Dad. I feel safe with you." She tells LEK she does not want to go to the clubhouse tomorrow. LEK says "I am not impressed Isabelle."
12/16/2002
I say to Ieave me alone and stop tracking me please. He says he is not tracking. me. LEK. tells me we live in the kind of world of smallpox; anthrax, and dirty bombs going off in malls.
I tPll hsm to stop being paranoid a-nd talk to a shrink. He tells me to think about the well being of the kids, not how much I hate him ...
12(20/2002 LEK says it might be good for Isabelle to "learn how to kiss a boy." See notes. He asks Lance if he goes pee pee on the floor. Lance says no, in my diaper.
I2/23/2002 Before LEK comes over I have Isabelle and Lance in the tub. Isabelle was washing Lance's back with a washcloth and said she loves to wash people. She says "I wash my Dad - back, tummy, privateS." I ask her when she does this and she says "only at the clubhouse and that's Daddy's secret " I ask her why and she says "because I like it."
I ask if he has any clothes on. She says sometimes he wears a bathing suit or underwear . . .
'7:40-8:15 pm LEK
2-It is not OK for people to tell her not ta kiss her Dad. That daddies and daughters kiss each other all the time and that is normal and what you are supposed to do.
3-He loves.her so much, protect her, always be with her.
4-They have their owri special relationship.
12/26/2002 _ LEK follows me and Isabelle upstairs. Tells me, "I am not trying to be difficult but I talked to your mom yesterday about putting knives away and they are stiIl out." I tell him we have taken the butter
30 DR-H'/33 knives out of the drawer and put them out of the childrens reach a long time ago.
LEK teIls me Lance charged at him with a plastic screwdriver from his toy bench and says "can you imagine if that was a knife and he hurt Isabelle. Lance is out of control."
12/28/2002 LEK watks in at 9:00 am to interview a potential babysitter.
LEK ±ells babysitter that IsabeLte ^as molested in her own house by a boy.- Tells her doors are kept locked, stay in house, keep knives hidden (Lance is out of control - charged at him with a plastic screwdriver).
She should also get to know the local police dept. as it is a dangerous world. She should know an escape route/bombs/ terrorism/very concerned about security and guard go with kids everywhere
Jan 2, 2003 . Isabelle is playing with her dolls. LBK tells her that they had to get her out of Mommy with a crowbar and that she "pooped in Mommy's tunuziy". He continues that she was hard to get out and Mommy had to squeeze her out. He wants to show her a video of her birth. He says Lance came out easy, he just "slid out of Mommy" and calls Lance "poopie-face"
I/5/2003 Returns with kids at I:40 pm. Claims he does not sleep in bed with kids anymore. Isabelle says not true.
1I7/2003 ... Calls Lance "poo poo head", "poo pee puss" and "puss head"
ISABELLE TELLS ME DADDY SMELLS HER DIRTY UNDERWEAR ... Daddy does a lot of things in the bathroom. He's a little weird." I ask what things? And she says she does not want to talk about it.
1/8/2003
31 DR-H733 LEK enters horne and says "Hi Poopster" to Lance. He goes upstairs and ask (sic) where his picture is?
In front of Isabelle LEK tells me I caused all this. It is my fault he has a problem with her. All girls have pictures of their Dad in their roorns ... We are in her room and he pulls open her desk and tries to find paper. She is crying to stay out of her artwork ... Isabelle goes to bed crying and says her heart is broken in two.
7ari. 26/2003 - Larry tries to remove kids from house and hits me.
He asks me again if I agree to answer the phone at all times. I say NO, there are times when I simply cannot answer the phone. He can Ieave a message and I wiil call back. _
In that case, he says he will take the kids right now and he goes towazd the tub to get Lance out. He pulls the kids out of the tub naked with no towel. They are crying and Isabelle is screaming "no Daddy, don't steai me away ... I try to get to the door to get out so I can get a phone. He slams it and blocks it. I ask him to move and he refuses and slaps me across the face. He tell me if I do not answer the phone every time he calls within 10 minutes he will call the police every time. He says he will go to court first thing in the morning and take the kids away from me and remove them from the house. He says he can prove it because I Ieave knives out, doors open, Isabelle was molested and 1 have a racist mother.
I ask him again ta leave or I will call the police. He goes downstairs and eomes back up with knives in his hand and he is waiving the knives in my face. I am afraid he will cut me or the kids I am holding. He waves the knives around me and the kids and says it will be "esthibit A" for the court in the morning and he leaves. Isabelle sleeps with me that night and wakes up several times scared of knives and Daddy.
2/2/2003 LEK Ieaves for California. Calls 23x
2/7/2003 LEK back in town. Calls 17x
2/15/2003
32 DR-H733 LEK picks up Lance and tells me it was an abomination how Isabelle treated him last night and I better do something - that this is unacceptable. I better intervene and support him instead of just sitting there like a"dumb ass" I better take some responsibility or else.
3/6/2003 ..."That is no way to treat your dad when he as a gift for you." I turn off the video and try to get her to talk to him before he blows up. She does not want to. He says "Fine, Isabelle, I am leaving, you are not nice to your dad" and storms out. I tell him to call before he walks into tl;e house, he does not live here anymore. He says "Go to heL bitch" in fro_n_t of Isabelle. Isabelle walks around house saying "go to hell bitch"
3/16/2003 Lance is in the bath and says to me "I have little boobies like-Daddy. That's what Daddy says in the bathtub."
3/22/2003 LEK calls at 10:30 am. He tells me Isabelle told him a story "Once upon a time there was a daddy who kept kissing his little girl. The little girl asked him to stop and stop, but the Daddy could just not control his lips." LEK asks me "Where do you think she got this from? ... I tell LEK'that I witnessed many, many times him kissing her, she says stop, he says "I just can't control mysel£ I love you too much." LEK says not true.
3/29/2003
LEK comes back at 630 p.m. with Sandy, Jose and their 7 year old grandson Dauid. LEK tells Isabelle "David is already in love with you. He thinks you are beautiful. He is really handsome. He can be your Latin lover.".
5/24/2003 LEK returned with Isabelle at 5:00 pm. Isabelle tells me Daddy kept telling her "I know you love me the best."
5/26/2003 ... He tells Isabelle how beautiful she is "I can't believe my girl is so beautiful. F just love you so much. I know you love your Dad.". . . Lance looks at me and says "Daddy can't help himself." I ask Lance about what and Lance says "He can't stop kissing me all over my head. Daddy love me so much."
^^ DR-H733 8/31/2003 Isabelle is taking a bath in the pm. She says "Mommy, privates are yucky. Like Daddy's when I was 4 his privates hung out of his underwear and I played with his privates in the bathtub."
I ask Isabelle where she was when it happened and she says "Daddy's clubhouse." I ask her what else happened at Daddy's clubhouse and she tells me she pulied hairs of out his body because he asked her to. I ask her where and she says all over his legs and his "boobies" I start to cry and she says "don't cry mommy, I didn't hurt him."
I have tallced with Isabelle about what is right and wrong touching. (Emphasis in the original)(Court's Bxhibit 1)
The Plaintiff would repeatedly refer to those allegations as "smears" created by the Defendant and her attomey. He did not comment in the interview as to specific allegations, but they cannot be ignored because they lend credence to the complaints the Defendant made through her counsel from November 22, 2005 through March 2007 and to the PlaintifPs behavior up to the time the trial ended.
There are three incidents that took place over that period of time that are especially worth noting. The first took place on September 10, 2007 when the Plaintiff and his then wife, Diana, appeared unannounced at Gesu, the children's school, with two suitcases of gifts; one for each child. The Plaintiff tald the school secretary to have children brought in so he could talk to them. The secretary, in turn; summoned the principal, Sister Linda Martin. She testified that when she went to Lance's second grade room to take him to his father, Lance did not want to go. After being assured by Sister Linda that she wouid remain with him, Larice went with her to meet his . father and Diana in the front hall of the school. Sister Linda went on to testify that Lance showed no emotiori when his father hugged him.
She also stated that although the Plaintiff had brought a number of gifts for Lance, which he showed to the child and which Sister Linda calculated cost at least $150.00 without the suit case, Lance showed no interest in any of the items and asked to go back to his classroom, At that point, according to the notes that Sister Linda made of the incident (Defendant's Exhibit KK), . the Plaintiff pulled Lance to hi^ and hugged hiin and asked for a kiss; telling him that he loved Lance and he was Lance's real daddy. He also said that he was not trying to take Lance away from his mother and again reiterated that he was his real father. He also asked Lance how his arm was.
Diana Klayman then asked if the Plaintiff could see Lance alone. Sister Linda stated from the stand that she told the Plaintiff that Lance had told her he wanted to have her present while his father was there. She fixrther testified that in response the Plaintiff called her a liar in front of Lance, who she sent back to class (see also Defendant's Exhibit KK). She subsequently had a second conversation with the Plaintiff that began with him apologizing for calling her a liar. At
^ 34 DR•H733 the end of the conversation, during which Sister Linda's testimony and notes reveal the Plaintiff spent considerable time "tearing down the mother" and telling her why the Defendant was a"bad mother", he kissed her on the cheek. Asked why he did that the Plaintifftold the Court that he was trying to "show hex affection". He then went on to describe how this was acceptable in his wife's culture. (He testified that she is of Columbian descent.)
The incident is particuIarly revealing for two reasons. The first is that the PIaintiff crossed the line when he kissed Sister Linda. Whether it is true that kissing a nun is acceptable in Columbian culture, and there is absolutely no evidence that it is, the Plaintiff wasn't in his wife's culture. More importantly, neither was Sister Linda. The Flaintiff had just met her for the first time that day and yet he saw nothing wrong with kissing her, albeit on the cheek. It was an invasion of her personal space, one that was unwanted and unwan•anted. Sister Linda clearly found the Plaintiff s act disturbing, but he didn't. He, in fact, seemed to have no understanding why she, a nun, would be upset by a male she just met ltissing her.
This brings up the second and more significant point, which is that the PIaintiff would not recognize let alone acknowledge that he had acted inappropriateIy. There is no question from both the Plaintiffls testimony as well as his demeanor when he testified that in his mind he had done nothing wrong when he kissed Sister Linda. His attitude, as he made manifest by his words and bearing, was that as long as he felt justified in what he did he had every right to act in the fashion that he did and there was no reason for him to apologize for his actions. If there was a nusunderstanding or a problem it lay not with him, but with Sister Linda.
The other reason to focus on the incident is the Plaintiff's attack on Gesu School in general and Sister Linda's character in particular. She was someone who stood in his way when he attempted to see his children at school. For that she earned his ennrity which manifested itself in his accusation that she was prejndiced, telling her and Iater the Court that she had looked down on his wife because of the color of her skin. Except for the Plaintiff's word, which is extremely suspect, there is no evidence of any kind to support the allegation. If anything, Sister Linda's testimony as it i•elates to her involvement with a program in Honduras belies the notion that she is prejudiced in any way toward people whose skin is darker than hers.
Having made the claim of bias based on his wife's skin color, the Plaintiff subsequently underout it when he wrote in another lawsuit involving the Defendant and her counsel that I^iana Klayman is "not dazk skinned" (Defendant's Exhibit IIII). If she isn't then there was obviously nothing to distinguish her and no basis for Sister Linda to look down on her because of her skin color, an atlegation for which there is absolutely no basis in reality.
The Plaintiff's contention that Sister Linda that was silently bigoted would. metamorphosize into a much. broader attack on her when, on August 8, 2Q09 he filed suit against Gesu in a Miami, Florida Court (Defendant's Ezdiibit TT). In Paragraph 6 of his complaint the Piaintiff aIleged that:
Anti-Latin remarks have indeed been published by Sister Linda Martin about Plaintiff s wife, who is a U.S. citizen but also proudly of Columbian origin.
35 DR-H733 How the Plaintiff came to that conclusion is an absolute mystery as it is an allegation without any support whatsoever. There is no evidence that has ever been introduced in this proceeding or anywhere else the Plaintiff could point to that established that Sister Linda ever commented about Diana Klayman after she compiled her notes let alone "published anti-Latin remarks". The Plaintiff expanded his attack on Sister Linda iater in his testimony, declaring that she behaved in a way that was not only racist, but anti-Semitic as well. Again, it is impossible to discem much less understand tlie thought process that lead the Plaintiff to conclude from Sister Linda's actions on the day they met that she was anti-Semitic.
It would be one thing if she had been wearing an SS uniform complete with swastika or that she was carrying a placard thaf read "Death to all Jews", but she wasn't. There was absolutely nothing about her demeanor or dress or words as the Plaintiff described them that would lead a rational person to conelude that she was anti-Semitic. The Magistrate finds, instead, that those claims are simply another example of the Plaintiff demonizing those who do not agree with him or who refiise to allow him to act as he believes that he has a right to
That penchant took a decidedly absurd turn later on in Paragraph 6 when the Plaintiff deciared that:
The head clergy (at GESLI), which (sic) strangely call themselves "Revererids," including but not limited to Rev. Lom J. Snow, exhibit the demeanor of being outwazdly gay... (Defendant's Exhibit TT)
It is no surprise that the Plaintiff never offered to flescribe the priests' behavior or provided any explanation of what he meant when he said that "Reverend" Snow's demeanor was outwardly gay. It may be that he felt that such specifics were unnecessazy because the phrase conjures up a picture that is recognizabla by everyone. If tha# was what the Plaintiffthought, hewas wrong. His comment is stereotyping of the worst order. It would not be the last time, though, that he would accuse someone who he viewed as standing in his way as a homosexual.
The Florida complaint goes on to allege that Sister Linda "confiscated" the gifts that he brought the children and thafthe school teaches that Tews don't go to heaven and "other anti- Semitic" doctrines. The latter is a particularly strange allegation since 2007 was not the first year that the children had been attending Gesu. Somehow, though, the Plaintiff would have the Court believe that he didn't become aware of the school's alleged doctrines regarding Jews until then. The only other possible explanation for the failure to raise the issue earlier is that he didn't care what the school taught until he launched his attempt to obtain custody of the children. He also alleged that he was concerned:
....about the potential for child abuse, particularly in this parish of the Cleveland Diocese, which is infamous for its tolerance of pedophilia by many of its priests, whose names have been secret kept (sic) from the media....(Defendant's Exhibit TT)
36 DR-H733 As of the time he testified the Plaintiff failed to offer anything to baclc up those assertions or to even tell the Court when his concern about the children's potential contact with pedophile priests arose.
Equally disturbing, but in another way is the Plaintiff's claim that Sister Linda "confiscated" the presents that he brought the children and that she stood in the way of his seeing them. The Magistrate finds that the Plaintiff was incapable of comprehending that by showing up unannounced at the school and demanding to see the children as well as bringing them presents he would disrupt their day. That lack of understanding is another pattem that repeats itself throughoutthese proceedings.
So too is the Plainfiff's misrepresentation of events. He repeatedly accused Sister L'mda nf"COnfiscating" t1?e gifts t1^at he brought for the children. The word means to seize something, which is not what happened. The children refused to take the suitcases and the gifts. It was their decision not Sister Linda's. She didn't rip them out of the children's hands or take them away from them or tell the children that they could not take them. She eventually held them at the school, but only a8er talking to the children who had refused to take them. The Plaintiff knew that she had no hand in that because he was standing in front of the children when they refused to take the gifts. There is absolntely nothing in the Plaintiff's testimony that contradicts that sequence of events. Sister Linda eventually handed the suit cases along with the gifts back to the Plaintiff when he returned a second time. In the face of that history, only the Plaintiff's imagination could conclude that Sister Linda had confiscated the suitcase and presents.
By the same token, there is absolutely nothing besides the Plaintiff's suspicions that:
.... Plaintiff's former wife gets special treatment from Gesu Parish School because of (sic) her family has donated money to the affiliated church, causing Gesu Parish School to discriminate against plaintiff and his Latin wife, Diana.
While the testimony established that the Defendant and her family have been members of Gesu Parish for years, there is no evidence that they are heavy contributors or even that whatever monies they have donated won them special status with Sister Linda.
If she did not behave toward the Plaintiff as she did toward the Defendant, it wasn't because of money. Rather, her testimony reveals it was the Plaintiff's behavior which included calling her a liar in front of Lance in the hallway, kissing her, disparaging the Defendant and failing to understand why trying to see the children at school during the school day was not, in her opinion, a good idea because it would interfere with their learning environment that caused her to view the Plaintiff in a less favorable light than she viewed the Defendant.
The second example of the Plaintiff's failure to observe proper boundaries occuned late. in the trial when the undersigned found him in contempt for failing to follow the Court's instructions. It was a step taken only after the Plaintiff was given every opporiunity to comply with the Magistrate's instructions. By way of explanation for why he held the Piaintiff in contempt the undersigned found: 37 DR-A733 .... that the Plaintiff is an attorney who has been or is licensed to practice in the States of Florida, Virginia and Pennsylvania and in the District of Colurnbia. The Magistrate further finds that the Plaintiff was repeatedly admonished, especially while he was on cross-examination, that he was to only answer the questions that were put to him and not to go beyond the questions by testifying to issues that were not raised by the question or were beyond the scope of the question or by making comments about the Defendant or her counsel.
The Magistrate further finds that at one point after again being admonished by the Magistrate to only answer the questions put to him the Plaintiff argued with the Magistrate, telling the Magistrate that he had a right while under cross-examinatiori to explain his answers. Fle was explicitly told that he did not and was again told to only answer the questions that were put to him. He was further toId at that time as he had been advised before that if his counsel deemed it necessary to go into those matters he would have an opportlmity to do so on redirect examination.
The Magistxate fiuther fmds that after numerous attempts to force the Plaintiffto adhere to the rules of court he advised the Plaintiff on October 27, 2009 while the Plaintiff was still under cross-examination that if he again failed to answer a question that was put to him while on cross-examination and instead tried to elaborate on the answer he would be held in contempt.
T`he Magistrate further finds that in spite of that warning and being fitrther advised that he should only answer the questions as they were asked of him the Plaintiff continued to ignore the Magistrate's instructions and answer as he liked, testifying to things that were Beyond the scope of the question that he was asked.
The Magistrate further finds that just before the Defendant's counsel was to start her recross-examination of the Plaintiff the Magistrate explicitly warned the Plaintiff that he was only to answer the questions that were put to him and not to add anything else.
The Magistrate further finds that in spite of that warning and in spite of all of the prior instructions and admonitions from the Court the Plaintiff failed and refused to follow the Magistrate's instructions and wamings and continued to testify as he pleased.
38 DR-n733 The Plaintiff, in other words, refused to recognize that he was bound by the rules. Purther, he made it clear to the Court by his facial expressions in reaction to the Magistrate's repeated admonitions that he considered his behavior not just appropriate, but justified and the Magistrate wrong to challenge him. In simple terms, he wanted to change the rules of the game to suit himseljf and refused to aclmowledge that someone could tell him he couldn't or that he did anything wrong when he repeatedly tried to.
The third, and far more disturbing example of the Plaintiff s attitude, occurred at I0:10 p.m. on Saturday, July 26, 2008 when the Plaintiff sent his picture along with an email message that read: "Boo!" to the Defendant's counsel (Defendant's Exhibii M). Given an opportunity to explain why he sent the message the Plaintiff told the Court that he was just trying to "create some humor". The idea that sending Defendant's counsel his picture and the word "Boo" late on a Safiarday night was f2umy is so utterly absurd, so ridiculous that it is not worthy of any consideration whatsoevei. The Magistrate fmds, instead, that it was a deliberate violation of the April 10, 2008 order by this Court that:
.... so long as Mr. HIayman is represented by counsel, only his counsel may question and cross examine witnesses, make objections; present arguments and commuuicate with opposing counsel. (Emphasis added)
There is notlung complicated or obtuse about that phrase. Neither is there anything confusing abont the language. The words are simple, straightforward and easily understood; especially by someone with the Plaintif#'s education. They unequivocally declare that the Plaintiff is to have no direct contact with the Defendant's counsel. In spite of that admonition he did and then tried to justify his violation ofthe order by claiming that he thought it only forbid communicating with her while the two were in court.
Besides the obvious misreading of the entry the Plaintiff subsequently sent an email to Defendant's counsel on November 10, 2008 that completely undercut that claim. In it the Plaintiff implicitly acknowledged that the ban applied to him regardless of location by teIling Defendant's counsel that "Roger is on vacation, so I am communicating directly with you....". (Defendant's Exhibit DDD) Obviously, if the Plaintiff really believed that the April I0, 2008 entry only prohibited him from communicating with the Defendant's counsel when the two were in court he would have had no reason to try to justify his violation of the order on the basis that his counsel was unavailable.
The April 10, 2008 entry grew out of the Defendant's effort to clarify the Plaintiff's role. At that point he was claiming a dual status; pro se and co-counsel. After considering the issue Judge Russo concluded that so Iong as he was represented by counsel he could not also participate in the capacity of a pro se litigant. Rather than accept the Judge's decision, the Plaintiff filed an interlociitory appeal on April 15, 2008 challenging it. Six day after he filed that action he filed a second appeal in which he alleged that the trial court erred when it unsealed the records of the parties' Virginia divorce. On November 13, 2009 the Court of Appeals for the Eight Appellate District rejected both arguments (Court of Appeals Nos. 91298 and 91317).
39 DR-HT33 As to the Plaintift's claim that he could ac# as co counsel and pro se, the Appellate Court noted that Attomey Roger Kleinman had appeared on the Plaintiff s behalf on December 4, 2007. Of greater significance the Court of Appeals noted that:
The record shows that appellant intezrupted his own attomey during depositions and, in some instances, instructed a deponent on how or when to answer. Appellant obstructed reasonable discovery xequests by filing countless motions to quash and by failing to produce documents.
While ti'rat observation was not the sole basis for the Ccurt of Appeal's epinion, it obviousi_y played some part in the pa.+:el's decision to support Judge Russo's determination that the Pl.aintiff could not act as pro se co-counsei.
The rulings could not have been clearer, yet the Plaintiff refused to accept that they applied to him, emailing the Defendant's counsel as late as February 17, 2009 that:
...... I am not prohibited from communicating with you. I have First Amendment rights and I am co-counsel, not withstanding the court's order that I cannot participate at trial, which is before the Ohio Supreme Court (Defendant's Exhibit R) (The Ohio Supreme Court denied the Plaintiff's appeal)
The two sentences highlight the theme that runs throughout so much of this case, which is the Plaintiffls beliefthat so Iong as he engages in the behavior he is justified in whatever he does.
On June 26, 2009, just three days before this matter was scheduled to go to trial, the Plaintiff opened yet another fronf in the war by filing an action in the Federal District Court for the Northern Division against Magistrate Mills and the Honorable Anthony J. Russo. Captioned "Complaint For Equitable And Legat Relief' and docketed as Case No. 09 CD 1459, the Plaintiff maintained that his was an action for declaratory judgment in which he maintained, among other things, that.neither Magistrate MiIls nor Judge Russo had faken any action for nearly two years to enforce the marital agreement which requires visitation and contact between the Plaintiff and the children (DefendanYs Exhibit III).
The fact that his initial counsel's schedule precluded a quick trial on the merits bf the dispute and that his interlocutory appeals stopped the Court from proceeding doesn't seem to have crossed the Plaintiff s mind. His complaint about the delay is yet another example of the Plaintiff's belief that everyone else other than him is responsible for the predicament in which he found himself: The ensuing five and a half pages of the federal action aze a rehash of the allegations that the Plaintiff had been making since he filed his Motion to Modify Parental Rights and Responsibilities on July 5, 2007.
40 DT2-H733 By way of remedy, the Plaintiff demanded that the Federal Court enjoin Magistrate Mills and Judge Russo from presiding over the ongoing custody case and, in addition, vacate all of the orders issued by the Domestic Relations Court up to that time. In essence, the federal complaint amounted to an attempt to appeal the Domestic Relations Court's rulings to the Federal Court, which, if Plaintiff were to be successful, would take jurisdiction of the matter.
Less than two months after he filed his federal complaint the action was over; the Federal District Court determining that it did not have jurisdiction over the subject matter ofthe dispute. In so doing Judge Patricia Gaughan, to whom the matter was assigned, concluded that the Plaintiff was in essence seeking an appellate review through the District Court of the Domestic Relations Court's rulings to that date. Ultimately, after a five page analysis Judge Gaughan dismissed the PlaintifPs action and then declared:
The co.urt certifies pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. (Defendant's Exhibit JJJ)
The PlaintifPs suit was successful in one respect. Judge Russo recused himself following which the matter was reassigned by the Administrative Judge who referred the matter to the undersigned for trial. At the commencement of the hearing on June 29, 2009, Plaintiff's counsel notified the Court that Plaintiff had fired him, which the Plaintiff corifirmed. The Plaintiff then mistaking Judge Russo's decision to recuse himself as evidence that he had been vindicated, moved to set aside all of Judge Russo's orders as well as the orders issued by Magistrate Mills and continue the case. After considering the merits of the PlaintifP s claim, the undersigned denied the Plaintiff's motions and informed Plaintiffl s ex-counsel that while he could remain in the room as an observer since it was a public forum, he could not sit at the trial table and could not assist the Plaintiff in the presentation of his case.
At that point the Plaintiff asked for a short recess so he could confer with his ex-counsel: The undersigned granted the request and the two men went into the hallway only to return a short time later at which time Plaintiff's counsel announced that he had been rehired by the Plaintiff. He then proceeded to make an opening statement on behalf of the Plaintiff following which both the Defendant's counsel and the Guardian ad Litem reserved the right to open later. It ia no surprise given what was at stake, the intensity with which the parties fought and the number of prospective witriesses on each parcies' witness list that the trial was not completed within the time originally allotted for it.
The undersigned subsequently issued a Magistrate's Order on Juty 9, 2009, that declared that the trial would resume on October 23, 2009, and continue through November 5, 2009, and that in the event that it was not complete by 4:30 p.m. that day, it would resume on December 1, 2009, and continue day to day until complete. Although the order declared no further continuances would be granted, the Court granted Plaintiff's counsel a continuance for the November 5^` hearing because of miscommunication between the Court and Plaintiff's counsel prior to the entry of the July scheduling order.
41 DB-H733 On October 15, 2009, the undersigned issued yet another scheduling order, this one providing that if the trial was not complete by November 5, 2009, it would resume on December 1, 2009, and continue through December 11, 2009. The trial continued through November 4`^ and recessed until December 1^`. On November 25, 2009 at 4:07 p.m, the Plaintiff filed a Motion for Continuance, Motion No. 290904, in which he requested that the Court:
...continue the trial scheduled for December 1, 2009 at 9:00 a.m. for the reason that Plainfiff is involved in negotiations in Washington D.C. in a nationally publicized case. Negotiations for the matter will run into next week. Additionally, Plaintiff has no funds to come to Cleveland other than what he may receive from the settlement of the fcregoing case. Interruption of the negotiatiens ^=rilI work nnreasonable bardship on Plaintifl:
The motion was denied.
When the triat resumed on December 1, 2009 the Plaintiff was not present. His counsel orally renewed his motion to continue the hearing, reiterating the reasons that were set forth in his written motion of November 25, 2009. Those included that the Plaintiff's financial position was so precarious that the Plaintiff was forced to live with his client in the Washington D.C. area because he could not afford to live on his own and that he did not have the funds available to travel to Cleveland and stay here for the trail. The undersigned again denied the motion.
The Plaintiff did not appeaz for trial on Wednesday December 2, 2009. At the start of trial on Thursday, December 3, 2009 the Magistrate informed Plaintiff's counsel:
If your client is not here by the time Ms. DeLuca finishes her case today or 4:30, whichever comes first, I will dismiss his motions.
At the time the Guardian had yet to present her case on behalf of her wards. That would have included her examination of the Plaintiff, which was critical to her ward's position. For purposes of continuity the Guardian had waived the right to cross-examine the Plaintiff in lieu calling him as if under cross-examination in her case in chief. The Defendant rested at approximately 4:20 p.m. on December 3, 2009. The Plaintiff had not appeared for trail by that time. As a result, the Ivlagistrate notified the parties that the Plaintiff's motions were dismissed. At that point Plaintiffls counsel renewed his request that the Court continue the matter to allow his client to appear and that no hardship wouId occur because the trial was set for the entire following week: The Magistrate again dexued the Plaintiff's motion to continue the matter.
The Court finds that the Plaintiff was on notice as eazly as July 9, 2009 of the days on which this matter would be tried and that.no continuances would be granted. Even though he was forewained he failed to appear on December lst 2aa and 3`d because, according to his counsel, he was: ...involved in negotiations in Washington, D.C. in a nationally publicized case. The negotiations for that matter will run into next week. Additionally, Plaintiff has no funds to come to Cleveland
42 DR-R733 other than what he may receive from the settlement of the foregoing case.
The Plaintiff was well aware of what his obligations were, but chose to ignore them in favor of some other matter. That was his decision.
This Court did not create that conflict. If one existed, it was striotly the fauit of the Plaintiff who decided that the negotiations in Washington were more important than pressing bis claims in this Court. He had more than adequate notice of the dates that this matter would be tried and elected to attend to another matter. It was a strange decision from someone who has complained bitterly for over two years that he has.systematically been denied parenting time wi#h h?s children and that the Court has stood by and let it happen. That, however, was his choice; not the Court's. It is especially strange in view of the fact that the Plaintiff was in the middle of trial in this matter when he decided that it was more important to be in negotiations elsewhere.
There is nothing to suggest that those negotiations could not have been postponed a few days in order to allow the Plaintiff to finish what he would have the Court believe was the most important thing in his life; his children's welfare and the need to rescue them from their mother and her machinations. Yet, in spite of every assertion he made about the Defendant's lack of fitness as a parent and her perfidy as well as the duplicity and mahce of the people surrounding her he was willing to forego the latter for the former.
What the Plaintiff apparently wanted the Court to do was to indefinitely suspend the trial until such time as he could amass sufficient funds to return to the fight. In view of what his counsel told the Court that might not happen for a significant period of time, if it were to ever happen. There is no statute, no rule of procedure no appellate ruling that requires that a court must indefinitely stay proceedings until a party either condescends to appear or has the financial wherewithal to do so. If anything, the opposite is true. A court has an obligation to regulate its docket to insure that all of the parties have a full oppornuuty to be heard in as expeditious manner as possible and that the process is not turned into a mechanism by which one party can harass or the other party by manipulating the court's schedule.
The Plaintiff's failure to appear in December caused the Defendant and the Guardian to l.ose the opportunity to cross-examine him and, therefore, adversely impacted their cases. Of greater significance, the Plaintift's decision to attend to some other matter in another forum instead of appearing and pursuing his claims in this Court leads the Magistrate to conclude that he failed to prosecute his motions.
Even if the Plaintiffls Motion to Modify Pazental Rights and Responsibilities had not been dismissed, he would not have prevailed. It doesn't matter whether this Court applied Ohio law as the Defendant argued it should or Virginia statutes as the Plaintiff maintains, the result would be the same; his attempt to be named the "custodial parent" would have failed and failed miserably. Before reviewing why the effort would have come to naught it is necessary to understand why the Plaintiff argued so insistently that this Court should apply Virginia law in this matter.
43 DR-H733 The Plaintiff s position is based on hvo premises. The first, and most important from the Plaintiff's point of view, is that Virginia law supposedly releases him from the obligation of paying child support because the Defendant denied him access to the children. The second is that because the Virginia divorce decree declares that:
The validity, enforceability, and interpretation of this Agreement shall be deterinined and governed by the laws of the State of Virginia. this Court has no alternative but to agply the laws of that state. Neither argument is persuasive; and of the two, the former is the more deficient.
It is ae ^a ly not a separate claim, but rather an offshoot of the Plaintiff s claim that Virginia law controls the outcome of this case. The argument comes down to the proposition that because the Defendant deliberately denied him access his children he was relieved of the obligation of supporting them. There are two flaws with that claim. The first and most obvious is that it can't stand alone. Tf Virginia law doesn't apply the Plaintiff cannot evade his obligation to pay child support because.Ohio does not have an escape clause for parents who refuse to support their offspring. The second, and more fatal defect in the Plaintiff's position is that Virginia law, the Plaintiff's arguments to the contrary, does not permit an obligor to evade his responsibility to pay child supporC if he is not afforded parenting time with the minor children. His claim that he cannot be forced to pay child support is predicated on one just case, Hartman v. Hartman, 1994 L 1031136.
Whi1e it is true that the Virginia court held that the father in that case could not be forced to pay support because he was denied the oppommity to have time with his son, th^ facts that lead to that conclusion are so extraordinary and so dissimilar from the ones in this case that the Virginia decision has no relevance whatsoever to the matter under consideration. The reason it don't is that in Harnnan the mother not only cut off the father's access to the child, but told the child that someone else was his father and hid the child for years from the real father. It was that exceptional set of circumstances that led the Virginia court to hold that Mr. H.artrnan cauld not be forced to pay back child support. There is nothing remotely akin to that situation in this case. The desire, however, to avoid paying child support appears to lie at the heart of the Plaintiff's claim that Virginia law controls iri this matter because he made no other reference to Virginia ]aw as it relates to the modification of parentai rights and responsibilities.
As to the Plaintiff's primary claim, that the terms of the parties' settlement agreement provides that Virginia law controls, the undersigned finds the arguments set forth in the Defendant's brief with regard to the choice of law the Court should apply compelling. In a sense it reallydoesn't matter whose law the Court applies, Virginian's or Ohio's because the outcome would have been the same had the Plaintiff's motions not been dismissed the same; the Plaintiff could not have prevailed oh his motion to modify parental rights and responsibilities. The reason that it doesn't matter whose law is applied is that the factors outlined in Section 20-1243 of the Virginia statutes that a Virginia court must consider when detexminurg where the best interests.of a child lie are very close to those outlined in Section 3109.04 (F)(1) of the Ohio Revised Code.
44 DR-H733 If there is a difference between the laws of two forums, it appears to be that the Virginia code lacks the language in Section 31 Q9.04 (E) which declares that a court shall not modify a prior decree allocating parental xights and responsibilities unless it finds, based on facts that'have arisen since the prior decree, that a change of circumstances has occurred in the child's life or the life of the residential parent and the modification is in the best interests of the child. Based on the evidence the Plaintiff could not have possibly met that standard even if his motion to modify custody had not been dismissed. Neither could he have satisfied the standards outlined in the Virginia Code.
The Plainfiffls focus wasn't on Virginia statutes or case law, though, but on the language of the Virginia Settlement Agreement in which the parties agreed that the validity, enforceability and interpretation of the Agreement would be governed by the laws of the State of Virginia. When the Plaintiff filed to change custody he raised an issue other than the validity of the decree or its enforceabilitp or its interpretation. Modification of the decree is not synonymous with any of those terms or their effect. It falls into an entireiy different category. Applying one of the basic principles of contract interpretation, expressio unis est.excuTsio adterius (to include one thing is to exclude all. others) means that parties' failure to mention modification of the decree in the list of situations that Virginia law would control takes it out from underneath the language of the Settlement Agreement.
Even if that were not the case, the undersigned finds that under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act (Article 3127 of the Ohio Revised Code) the Plaintiffls decision to xegister the decree in Ohio after the Defendant and the children had been residents of this state for two and perhaps three yeazs while the Plaintiff had been a resident of Florida for at least as long invested this Court with the authority to apply Ohio law to determine if the Plaintiff sliould prevail on his motion to modify the allocation of parental rights and responsibilities.
Before seeking to resolve that question, it is necessary to dispose of the issue of PlaintifPs failure to permit Dr. Schwarti, a psychologist in Miami, Florida who saw the Plaintiff, to release his records. It is settled law in Ohio that when a party seeks to modify the allocation of parental rights and responsibilities his mental and physical health becomes an issue that the court must consider when deciding whether to grant or deny the motion. Based on that premise the Eighth Appeilate District Court of Appeals in GiII v. Gill (Jan. 16, 2003) Cuyahoga App. No. 81463, effectively required that a party seeking to modify a prior custody decree must turn over his or her medical records whether they relate to his physical health or mental health.
The Plaintiff announced that he would not allow Dr. Schwartz to release his records because, in his opinion, they weren't relevant since he had only seen Dr. Schwartz along with his wife (Diana Klayman) for marital counseling. Since the Plaintiff also testified that he has seen Dr. Schwartz since 2003 there is reason to question that statement. Regardless of the length of fime that he has been a patient of Dr. Schwartz, the Court onIy has the Plaintiff's word for the reason he has been consulting him and he has shown little reason over the term of this conflict for the Magistrate to put much, if any faith in what he has to say.
45 DR-H733 Of greater significance, it is not for the Plaintiff or any party to determine what is or is not relevant once he puts his physical and mental health at issue by contesting the allocation of parental rights and responsibilities. Rather, it is for the Court to decide. It may very well be that if the Plaintiff permitted Dr. Schwartz to pxoduce his records they might have added little or nothing to the discussion. On the other hand, the records may have contained information that would have been of significant assistance to the Court in determining where the best interests of these children lie. The Plaintiff's decision to withhold that information allows the undersigned to draw an adverse inference from his refusal to release his recoxds. For reasons that will be discussed below, the issue did not disappeaz when the Plaintiff failed to prosecute his motion. Even if he had finished the trial, even if his motion to modify custady had not been dismissed there is more than adequate reason to question Plaintiff s suitability as a parent.
Those factors manifested themselves throughout the Plaintiff's attempt to wrest control of the children from the Defendant. His effort was based on three interlocking premises. The first is that the Defendant is not only an unfit mother, but a malicious individual who will stop at nothing to destroy his relationship with his children. That one is connected to the second which is that the Defendant deliberately embarked upon a course of action designed to remove him as influence in the children's lives which, in turn, leads to the third premise which is that the Defendant fabricated the claim that the Plaintiff se^nxally abused Lance and continued to pursue that claim in spite of all evidence to the contrary.
At the same time he pursued those lines of attack the Plaintiff sought to portray himself as a warm, affectionate parent who deeply loves his children and who wants nothing more than to provide for them and to spend time with them. While the Magisfrate has no doubt that the Plaintiff loves his children in his own way, the bulk of his claims, especially those relating to the Defendant both as a person and a parent, are so devoid of the factual content as to amount to fantasy.
The Plaintiff had no problein cataloguing the Defendant's faults as a parent, telling the Court during the course of his testimony that she should be stripped of custody because:
1. She permits the children to ride their bikes without supervision on the sidewalk, which was dangerous because the houses are jammed together and a car could pull out and kill them;
2. She allowed them to walk around in the dark alone;
3. She allowed Isabelle to sit in a convertible without her seatbelt on;
4. She does not adequately supervise the children;
5. She allows the children to use the "F" word every other word;
6. She doesn't show real affection to them, is veiy cold towards them and doesn't kiss them; 46 DR-H733 7. She hasn't protected them;
8. She allows the children to run out and play in the streets;
9. She lets the children run around unsupervised and there are 37 seaual offenders in the area;
10. Even though he admitted the Defendant's house is in a nice neighborhood, there are rough areas around it;
11. She and her mother don'± respect him in front of the children;
12. When Lance fell off the diving board, he was being accompanied by a 13 year old. (Later the allegation was that he was under the supervision of a 12 year old);
13. The Defendant farms the kids out, leauing them all over the neighborhood;
14: The Defendant and her present husband misappropriate the child support that he paid for the children, spending it on . themselves;
15. The Defendant did not provide him with advanced notice of events in the ahildren's lives so that he.could participate in them;
16. She would schedule things on his weekends so he either did not have adequate time to get there or would interfere with his time;
17. She would not allow him to come to her house for Isabelle's First Communion pariy;
I8. She would unilaterally schedule vacations when she knew he would not be able to trauel;
19. She confiscated presents that he bought for the children including cross with Stars of David on them and Amigo phones; `
20. The Defendant totally cut him off from the children;
21. She allowed the children to call him Larry;
47 DR-H733 22. She turned the children against him so that Isabelle is now afraid of him when she never was before;
23. The Defendant would not allow the children to see the Plaintiff's mother who died in early 2008;
24. The Defendant refused to provide him with any information about Lance's diving board accident.
Leaving aside the PiaintifPs allegation that the Defendant systematically interfered with his contact with tihe children and those tahat fall into the same category, the Magistrate can find no support for the rest of+1^e PlantifPs allegations which, because they are without any foundation, say more about Plaintiffl s imagination and view of the world than they do about the Defendant's parenting abilities or her as a person.
This is especially evident with regard to the claims the Plaintiff made concerning the Defendant's alleged lack of supervision of the children and the danger posed by the neighborhood. The Defendant, her mother and her husband all credibly and convincingly testified that Defendant's house is located on a quiet residential street away from a major intersection in what would be considered a"good neighborhood". There is nothing to suggest, as the Plaintiff testified, that there are "rough areas" arotmd the neighborhood where the Defendant's house is located. If there are any such rough areas, the Plaintiff was unable to point to any of them on a map or name any of them or introduce any evidence whatsoever of their existence.
By the same token, while there might be some registered sexual.offenders living in the area as the Plaintiff maintained, he ultimately adnutted that the area he was talking about was the zip code within which the Defendant's house is located. If the Plaintiff had any idea how many people live within that zip code or how large a geographic area it covers, he did not see fit to share that information with the Court. Interestingly, although he has taken the children to California as well as to where he was living in Florida, the Plaintiff never mentioned if he had checked to see how many registered sex offenders were in the neighborhoods where he was living. He also did not mention if he determined how many sex offenders were living around the building he occupied while he was Iiving in Cleveiand.
To be fair to the Plaintiff,, he did not so much stress the danger to the children caused by where they live as by what he saw as the Defendant's abject failure to supervise them or even care enough about them to take the time to supervise them. By way of proof of her lack of concern for the children the Plaintiff alleged that she allowed them to ride their bikes without supervision on the sidewalk, allowed them to walk around after dark and allowed them to run out and play in the street. These failures; as the Plaintiff made clear, present a clear and present danger to the children because a car backing out of a driveway might strike and kill them or they might be struck by a car while they are in the street. It is not clear why the Plaintiff was concerned about the children being out after dark because he never provided a reason. It could be a general concern that they might get hurt or he might have worried that some pervert could
48 DR-HT33 snatch them. Whatever the reason, the Magistrate can find no substance to that charge or any of the other complaints listed above.
The Defendant's residence, contrary to the Plaintiff's depiction is not located in an area where the houses are cheek by jowl and the property lines demarked by dense hedge rows. If anything, the opposite is true. The houses, as evidenced by Defendant's Exhibit RRIL and her testimony and the testimony of her husband, are spaced relatively widely far apart with few having bushes along the driveway. Based on the evidence the Magistrate fmds that the Defendant's residence is located in a safe neighborhood; one in which children of Lance and Isabelle's ages ought to be able ta ride their bicycles on the sidewallc without an adult standing next to them the. whole time.
Even assuming for the sake of azgument that the Plaintiff was referring to a time when the children were much younger, as when they fust moved to the Kerwick residence, doesn't make his allegation that the Defendant allowed them to ride their bikes on the sidewalk without supervision any more credible. In a pattern that would be repeated over and over in this matter the Plaintiffwas unable to offer any evidence of any kind to support that claim. There might have been some, but if there was he did not see fit to bring it to the Court's attention. He has no one to blaine for that than himself as he was given every opportunity to do so.
Leaving aside the fact that there is absolutely no support in the record for the Plaintift's claims about the children riding their bikes on the sidewalk without adult supervision or that they were allowed to cross the street unaccompanied by an adult when they were at least eight years old doesn't prove that the Defendanf ignored her duty to protect the children. Clearly children need to be protected, but they cannot be cocooned and must not be. They have to have an opporiunity to explore the world and to Iearn which means that at times they must be &ee from constant supervision. It is.not a concept that the Plaintiff appears to uriderstand.
Rather than condemning the Defendant, the Plaintiff's allegations including those about the number of registered sex offenders living in the same zip code as the children and his claim that the neighborhood has rough areas around it lead the Magistrate to conclude that the Plaintiff sees the world as.a dark and dangerous place; one in which the children need to be under constant adult supervision less something terrible befalls them. That conclusion finds support in the notes the Defendant made in 2002 and 2003 conceming the Plaintiff's demands and actions during the period when the D.C. sniper and West Nile Virus were in the news.
They also.find. support in the Defendant's testimony and that of her husband with regazd to Isabelle's response to the Plaintiff teIIing her that she was unsafe in her neighborhood and in her mother's care and that there are people who climb through windows and steal kids and her . mother wouldn°t care. As a result of those conversations both the Defendant and Mr. DeLuca testified that Isabelle slept with the windows closed during the summer. As with the Defendant's statements relative to Lance's reaction to his father's questioning and his attempt to convince the child that his mother was sornehow to blame for his broken arm, it would be easy to dismiss the Defendant's testimony about Isabelle as nothing more that hyperboIe offered in an attempt to buttress her position in this case.
49 DR-H733 The Plaintiff s testimony, his emails and his complaints to CCDCFS , though, don't permit the Magistrate to do that. His views, as encapsutated in his charges against the Defendant, lend credence to her testimony. It is not hard to see that someone who is worried about the number of registered sex offenders who live in the same zip code as the children or who could be concemed about children of Isabelle and Lance's ages riding their bikes on the sidewalk v^ithout constant adult supervision would convey those concerns to the children by both word or deed. There is, in fact, every reason, given the Plaintiff's view that their mother was cavalierly ignoring their safety and refusing to protect them, that he would have conveyed those concerns to the children.
That conclusion finds corroberation in the testimony of Dana Ginley, a friend of the Defendant's who has children a little younger that Isabelle and Lance. NIs. Ginley testified that u*: 2005 the Defendar_t asked her to go tdck or treating with her and the children. because the Plaintiff was there. The Defendant, she said, told her that she was afraid of the Plaintiff and did not want to be alone with him. More telling was her description of the Plaintiff s behavior that night, stating that at evexy house "he interrogated" every neighbor. She went on to say that he even walked into a couple of houses uninvited to look around.
He was, in her view, very suspicious, which made for a tense evening. In addition, she described the Plaintiff as being "all over the kids"; telling them don't go here, don't go there, don't run. Even though she is a close friend of the Defendant's, the Magistrate fmds her testimony credible. Her description of the PlaintifPs behavior fits the pattem laid out in the Defendant's pre-decree notes (Court's Exhibit 1) as well as in the nature of the allegations that the Plaintiff made about the Defendant. And as in so many other instances, Ms. Ginley's testimony says more about the PlaintifPs outlook and view of the world than it does about the Defendant's alleged lack of concern for the children's safety.
It is, however, possible that the Plaintiff simply made up some the allegations about the Defendant as part of an effort to persuade the Court to view his ex-wife in the worst possible light. Such appears to be the case with Plaintiff's claim that the Defendant "farms" the childr8n out and that she doesn't show them real affection or that she and her husband use the child support, when the Plaintiff paid it, for their own ends and that she does not provide for the children who aze forced to eat rice and beans. The Plaintiff offered not one shed of evidence, called not one witness, elicited not one statement on cross-examination and did not present one document to substantiate any of those claims. All of the evidence, in fact, points in the exact opposite direction. No one at Gesu where the children attend school, neither Ms. Wingler nor Ms. Blue, the social workers who interviewed the children, nor anyone who has seen the children ever reported that tliey were not adequately cared for or showed signs of neglect or were malnourished or underfed or even hungry or were ill clothed.
There was some evidence about rice, but it doesn't help the Plaintiff. It is found in Ms. Blue's notes of her July 27, 2007 interview with Lance in which he told her, among other things, that his favorite foods are spaghetti and rice (Court's Exhibit 2). He also told her that he gets enough to eat. Ms. Blue didn't doubt the child's statements and the Magistrate can find no reason from the record as a whole to question either one.
50 DR-HT33 The Plaintiff also failed ta produce even one witness who could support his claim that the Defendant "farmed out" the children. The phrase is deliberately pejorative; designed to covey the Plaintiff s belief that the Defendant cares so little for the children that she would send them anywhere rather that have them with her. While the idea neatly fits into the Plaintiff s view of the Defendant, it finds no support anywhere in the record. Not one witness came forward to substantiate the PlaintifPs charge against the Defendant. Rather, as in so many other cases, the testimony points inthe opposite direction.
The Plaintiff did not contest the fact that the Defendant is a stay at home mother or that she volunteers at the children's school or that she has enrolled them in and takes them to baseball and dance or that she walks them to school or that she has a meal for them every night. That someone other than her was with Lance at the pcol on 7uly 3`a doesn't alter that picture as the law does not require that a parent spend every waking moment with his or her children and the fact that they don't doesn't mean that he or she "farmed out" the children as the Plaintiff alleged the Defendant did. To do that the Plaintiff would have had to do more than just make the . accusation. He would haue had to do something to support that claim. He couldn't, which leads the Magistrate to fincl that there is no truth to it.
It is worth noting that while the Piaintiff alleged that Lance was under the supervision of a 12 or 13 yeaz old when he fell offthe ladder to the diving board he failed, as be had in so many other instances, to substantiate that allegation. He also failed to show how, if the Defendant had been present, or if he had for thai matter, Lance would not have fallen. The only way the accident could have been auoided was if Lance was forbidden to go off the diving board or the child was encased in some kind of protective material and under the eye of an adult who, as he ascended each rung of the ladder, told him to "watch your step". Bven then there. is no guarantee that Lance would not haue fallen. Children have accidents. They cannot be protected &om everything. That Lance fell is not an indictment of the Defendant or evidence that the children's best interest lies with giving custody to the Plaintiff.
It is of interest that the Plaintiff's claim that whatever monies he sent for child support were taken over by the Defendant and her husband for their use and not used on behalf of the children who were forced to eat rice and beans was something that emerged during the course of trial. As noted earlier in this discussion, the Plaintiff told the Hot Line social worker with whom he spoke on July 12, 200, that the children's basic needs were being met. Though he clumsily attempted to dance around the subject, the Magistrate finds that he did, in fact, make that statement and he made it because he knew at the time he uttered those words that the children were being adequately cared for by the Defendant. Even if had never made the statement to the Hot Line worker the allegation that the Defendant and her husband squandered the child support payments on themselves and not on the children is another one of those claims for which there is there no proof other than the Plaintiff's imagination.
It doesn't seem to have occurred to the Plaintiff that in spite of the fact that he stopped paying child support long before the trial began that the children's needs continued to be met. They live in what appears to be a nice house.in a safe neighborhood; attend private school, were enrolled in dance and baseball and appeared well nourished and appropriately clothed. If, as ihe Plaintiff alleged, the Defendant and her husband appropriated his child support payments then
51 DR-H733 there shoutd have been some indicia that the Plaintiff could have pointed to that the children's lives were diminished by the Defendant's alleged greed and laclc of concern for the children. There was none. Certainly neither Ms. Wiggler nor Ms. Blue, the social workers who were involved with the family, mentioned any problems and the children didn't report any to them (Court's Exhibits 1 and 2). In the end, the allegation, like so many of the others that the Plaintiff rnade with depressing repetition, proved utterly baseless.
Likewise, the Plaintiff failed to establlsh that the Defendant lets the children play in the street or that she lets them walk around in the dark alone. The Plaintiff offered absolutely nothing other than his word to support either ailegation. Even if he could have demonsirated that the children were out of the house after dark he would have had to present evidence that allowing them to be out was scmehcw harmfui to them. By way of example, he would have had to tell the Cour! where ±hey were, where the Defendant and her husband were and what the children were doing at the time. Were they near the house? Were they around the block? Were they with another adult? Were they with other children? Were they catching fire4ies? Those were question for which the Plaintiff shotild have provided answers if he wanted the Court to accept that the children being out of the house after dark was proof that the Defendant was not adequately protecting them as he alleged.
Perhaps the most bizarre allegation that the Plaintiff leveled against the Defendant is that she doesn't show real affection for the children. She is, he alleged, very cold towazds them and doesn't kiss them. As with so many of the Plaintiff's other complaints about the Defendant and her pazenting ability, there is absolutely nothing to support this claim either. Certainly, the Plaintiff offered notlvng but his word to substantiate those allegations. The Defendant's witnesses, on the other hand; including not just her husband and her mother, but her friends and Sister Linda as well paint a totally different picture of the Defendant.
Mary Blue, the social worker who came to the house to investigate the Plaintiff's allegations of Mr. DeLuca's abuse noted that Lance is bonded with his mother; grandmother and sister. Her notes also reveal that the first time she spoke with Isabelle the child was so afraid of her that she sat in her mother's lap during the interview. While Ms. Blue felt that the child's reaction was unusual, she did not note that the Defendant was cold or unaffectionate toward Isabelle {Court's Exhibit 2). The Magistrate finds that the fact that the child sough solace from her mother at a time when she was afraid is evidence that Isabelie considered her mother to be someone who cazed for and would protect her; the antithesis of how the Plaintiff described the Defendant.
Dana Ginley, a friend who lives in the same neighborhood as tb.e Defendant was especially effusive in her praise of the Defendant; telling the Court that in her opinion the Defendant is an outstanding mother whose first concern is the safety of her children. She also stated that the Defendant knows where her children are at a11 times and that she walks them to school.
Further, the undersigned had an opporiunity to observe her demeanor when the Defendant testified about her children and her relationship with them. The only conclusion that the Magistrate can reach from the record is either that Plaintiff has an utterly perverse view of
52 DR-H733 the Defendant, one rooted in fantasy not realty, or he deliberately hurled this calumny at her as a means of striking out against her. It is also possible that the PlaintifPs descripfion of the Defendant as cold and unaffectionate is a way of comparing her failure to constantly hug and kiss the children all over their bodies as they reported the Plaintiff did. ^Vhatever tlte case, it bears repeating that the evidence unequivocally and overwhelmingly establishes that the Defendant is a warm, caring and affectionate parent.
Like his other allegations, there is absolutely no support for the Plaintiff's claim that the Defendant and her mother didn't respect him in front of the children and were constantly putting him down. T he hest that the Plaintiff could come up with to support that allegation was that . apparently in response to a question from Isabelle the Defendant told the child that the Plaintiff was too old to have children. That one instance, if the plaintiff accurately reported the child's words (and there are good reasons to doubt that he did}, does not establish the Defendant and her mother disrespected him in front of the children or that she was constantly putting him down. If anyth'sng, the Defendant's claim seems to be one of projection as evidenced by Sister Linda's notes (Defendant's Exhibit KK) and testimony concenung her meeting with the PIaintiff and his wife during the course of which the Plaintiff made every effort to disparage the Defendant. The record is utterly devoid of any hint that the Defendant engaged in similar behavior.
The Plaintiff atso complained that the children called him Larry, evidence in his mind that the Defendant had told them to or at least countenanced their disrespect of him in order ta marginalize him arid substitute her new husband for him. In other circumstances allowing a child to call a parent by his br her first name might be a cause for concern, but not here because the Plaintiff seems to have encouraged the children to do so or at least sent them mixed messages about how to address him. Those came from the cards that he sent them which he signed "Larry" (Defendant's Exhibits SSS, TTT and UUU). The Plaintiff, in other words, may have invited the children to call him by his first name. Having opened that door he cannot lay the blame for what followed on the Defendant.
There is also no basis to believe, as the Plaintiff maintained, that the children were "using the "F" word every other word" requiring that he teach them not to use it. Like the rest af the allegations discussed in the preceding paragraphs, the Plainfiff offered nothing ta substantiate that claim. Considering the number of emails that he sent to the Defendant on almost every other subject and his utter lack of respect for her as a parent, it is absolutely stunning that there is not one mention in any of those emails about the children's use of the "F" word or criticizing her for allowing them to use the "F" word. Since the Plaintiff had no problem documenting the Defendant's other faults, his failure to note this one leads the Magistrate to conclude that like so many of the Plaintiff's other clairns, it is without any foundation in reality.
The same is true of the Plaintiff's claim that the Defendant allowed Isabelle to sit in a convertible without a seatbelt on: At one point the Piaintiff maintained that he had video tape to support.that allegation. He also told Sister Linda that he had surveillance tapes (Defendant's Exhibit KK}. He told the Defendant the same thing in an email he sent to her on September 2, 2007 in which he advised her that:
53 DR-H733 I have documented your, Mike's and your mother's conduct for four years, I have surveillance testimony and video which will be produced as evidence in court and more proof than I need to have the chiIdren removed from your collective custody, topped off by Lance's near fatal accident recently when you left him with a child babysitter at a public pool. (Plaintiff's Exhibit 93)
In spite of what he told Sister Linda; in spite of the threat he made to the Defendant the Plaintiff never produced the tapes or anyone who could corroborate his claims, which, like so many others proved to be without any substance.
He also claimed that the Defendant failed to provide him with advance notice of the children's activities so he could participate in them. The onIy evidence in the record that might support that claim is an email dated Wednesday, January 11, 2006 in which the Defendant's attorney at the time advised the Plaintiff that she had just learned of a father-daughter Brownie square dance that was to take place on Sunday, January 15`^'. If the Plaintiff had evidence of other such occurrences, he kept them to himself.
That one instance is not sufficient by itself to substantiate the Plaintiff's claim that the Defendant repeatedly failed to provide him with advance notice of the children's activities so he could not participate in them. It especially doesn.'t given the Plaintiff's failed attempt to convince the Court that the Defendant had deliberately kept him in the dark conceming Isabelle's First Communion so he would not be able to attend the ceremony. As mentioned earlier in this discussion, the record unequivacally establishes that the Defendant notified the PIaintiff almost a month in advance of that event.
In a corresponding allegation the Plaintiff complained that the Defendant would schedule activities for the children on his weekends so he either did not have adequate time to get there or they would interfere with his time with the children. The only evidence of the latter is an exchange of emails between the parties in June 2007 in which the Plaintiff complained that the Defendant was trying to take up his weekend with "your desired activities for the kids". In response the Defendant pointed out that the "desired activities" were Isabelle's "Gala dance performance" and Lance's baseball game, which would be preceded by pictures. Isabelle she pointed out had been in dance for more than a year and Lance had a summer baseball league "as he does every summer". She aiso cornplained that the Piaintiff had not given her "more than one day notice" when he intended to exercise visitation (Defendant's Exhibit EE).
That brought a tough response from the Plaintiff who asserted that he had given the Defendant "notice by email and text message more than once in the last two weeks and well in advance of this morning" of his intent to visit with the children. He also accused her of listening in when he tald the children that he would be coming for Father's Day. Finally, he demanded to know when he could have the children for that summer as he had "asked her several tiines over the last several weeks". He then added: "This is documented as well." If there were such documents, the Plaintiff neglected to bring them to Court. Of the 108 exhibits that he marked for identificafion, not one deals with the period around June 15, 2007. There is, in fact, a ten month
54 DR-H733 gap between the email dated October 15, 2006 (Plaintiffls Exhibit 90) and the next one he introduced (Plaintiff's Exhibit 91), which is dated August 15, 2007.
That said, there apparently was some discussion regazding the Plaintiff's summer visitation with the children as the Defendant's counsel wrote to the Plaintiff on June 22, 2007 to notify him that:
At the request of your former wife, I would like to clarify the upcoming schedule for your time with the children.
Aithough you have traditionally spent time with the chiidren for two (2) weeks during the month of August, it appears that, due to your trial. schedule, this date (sic) will need to be modified. As such, Ms. Luck has agreed to reschedule your time for iwo weeks beginning on July Z5^' and ending on August 8a'. ' (Defendant's Eadiibit B)
At best, the exhibit indieates that the parties did discuss the Plaintiff's time with the children that summer. It does not, however, fill the gap between Ociober 15, 2006 and August 15, 2007 when the Plaintiff claims that he informed the Defendant by emaii(s) that he would be coming to see the children on Father's Day. He map have assumed she would know that he would be in Cleveland that weekend, but that is not the same as proving that he notified her in advance as he claimed. Further, given the Plaintiff s almost complete lack of credibility, his failure to produce those emails leads the undersigned to question whether they were actually ever sent.
Whatever else that can be discerned &om counsel's June 22°d letter; it does not prove, as the Plaintiff intimated, that the Defendant ignored his messages and set in motion plans to Iimit his time with the chiidren. As she pointed out none too pleasantly in one of the June 15th exchanges; the children were getting older and they have activities in which they want to participate. The Defendant did not set their dance or baseball schedules, but she was demanding on their behalf that the Plaintiff not just allow them to par[icipate in those activities, but insure that they did.
To be fair to the Plaintiff, he was caught in a classic dilemma. He could have said "no' ; that he would not take the children to their activities which almost certainly wouId have caused a fight with fhe Defendant and worse, disappointed the clrildren who would have been angry at him for taking them away from something that they reaIly wanted to do. On the other hand, he could have accepted that the children had those two activities and done what the Defendant suggested, proudiy watch them participate. The iinportant point is the fact that the Plaintiff found himself in that predicainent through no fault of the Defendant's. That howeyer, did not stop him from blarning her for the situation or accusing her of setting a plot in motion to minimize his. contact with the children.
There is absolutely no evidence that she had anything to do with arranging the children's activity schedules or that she deliberately put them in those activities because she checked in advance and determined that dance and baseball were the two most Iikely to adversely impact the
55 DR-A773 Plaintiff s ability to spend time with his children. Finally, it bears repeating that there is no evidence bepond the June 15, 2007 emails that the Defendant ever scheduled things on the Plaintiff's weekend so as to interfere with his time with the children.
Defendant's Exhibit B is noteworthy for another reason; it reveals that instead of unilaterally scheduling vacations when the Defendant knew the Plaintiff could not travel, as he alleged, she was attempting to accommodate his trial schedute. A review of the emails covering the period from December 13, 2004 through February 7, 2008 that the Plain6ff identified during the trial fails to reveal even one instance other than the one noted above when it could remotely be argued that the Defendant made a unilateral decision regarding the Plaintiff's vacation time with the children (Plaintiff's Exhibits 32 through 101). A review of the emails that the Defendant marked and admitted during ^iat yields the same result; absoIutely no evidence that the Defendant dictated the Plaintiff s vacation schedule (Defendant's Exhibits H through U, AA through EE, UU and ZZ). That, however, did not stop the Plaintiff from repeatedly making the allegation.
If there is little evidence to support the PlaintifPs claim that the Defendant dictated his vacation scheduIe to him, there are only emails dated January 12, 2008 and January 27, 2008 that speak of the Defendant refusing to allow the children to see the Plaintiff s mother before she died {PlaintifPs Exhibits 97 and 99). The Plaintiff testified, though, that he specifically asked the Defendant to let him take the children to see their grandmother in 2007. There is no documentary evidence to support that claim: no emails, no letters, no memos; nothing. Since there is littie evidence that the parties were communicating by phone in 2007 there is little reason to credit the Plaintiff's allegation that he specifically asked the Defendant to have the children so they could see.his mother. Instead, it appears that what the Plaintiff is complaining about is that he could not take the children to see his mother because the Defendant terminated his visitation in September or Octaber 2007.
At the time Isabelle was.9 and Lance 7: The Plaintiff never mentioned where his mother, who he admitted suffered from Alzheimers, was residing in 2007. It is not a blank that the undersigned can easily fill in because of an email that the Plaintiff sent to an attorney in February 2008 in which he put the lawyer and his clients on notice that he would be contesting:
....any monies paid out under the 1998 alleged will and conservatorship to you, and other interested persons, including heirs, until the issue of my mother's incapacity and the misappropriation of my grandmother's assets, among other relevant issues, is adjudicated.
I will be retaining local counsel to assist me in this.... (Defendant's Exhibit F^
Since the Plaintiff was licensed to Practice in Florida at the time, the reference to local counsel may mean that his mother was not a resident of that state. Ey the same token, the reference to her "incapacity" raises questions about how faz the disease had progresses by September 2007. Was it to the point that his mother would not have recognized her
56 DR-H733 grandchildren? Would any such visit have been traumatic for the children? Those were guestions that the Magistrate would haue liked the Plaintiff to have addressed, but he made no effort to.
Of greater significance, the Plaintifftestified that the children had never seen his mother. They had been to Florida for extended periods with the Plaintiff who testified to trips to theme parks and restaurants and the children going shopping or playing in his office. Never once did he mention taking the children to visit his mother. The Plaintiff testified that was the Defendant's fault. In response, she stated that she first met the Plaintiffls mather in 1995 when she and the Plaintiff were engaged. She went on to say that the two got atong well and that the relationship was nice. Finally, she told the Court that after the Plaintiff became involved in a law suit with his mother he forbid the Defendant to speak with her.
The Plaintiff never directIy challenged that testimony. It would have been difficult for him to do so in view of the "Newsweek" article that appeared in 1998 that reported on the $ 40,000.00 claim he made against his mother for monies she allegedly owed him for taking care of her mother (Exhibit E attached to the Defendant's Motions to Modify the Divorce Decree and to Temporarily Suspend Visitation}. It is noteworthy that in failing to dispute the Defendant's testimony the Plaintiff never mentioned when he last saw him mother. That is an important piece of information that the Court should have had because if he wasn't seeing his own mother their estrangement would lend credence to the Defendant's statements. On the other hand, if the Plaintiff had testified to having a warnz loving relationship with her that was characterized by freguent contact the Magistrate would have to doubt the Defendant's testimony. Although he had the opportunity to do so, the Plaintiff never touched on the subj ect.
Instead, as with so many other situations, the Plaintiff refused to take responsibility for the children never seeing his mother. T'hus, where the Defendant maintained that the Plaintiff was solely responsible for the children not seeing the Plaintiff s mother he blamed the Defendant who, he testified, banned him from allowing the children to meet his mother: It is an incredible assertion; one entitled to no credibility whatsoever. The Plaintiff is a lawyer who has aggressively pursued every possible line of attack inthese proceedings; not just in this Court but in the appellate courts of this State and in the Miami colu^ts and those in Alabama as well as in federal court.
He has also shown no fear of the Defendant, threatening her with "legal hell to pay" if he could not talk to the children and if she did not stop confiscating the cards and gifts that he sent them. (Defendant's Exhibits R and GGG) He also issued a none too veiled threat when she mentioned trying to get her shaze of the monies due her under the divorce settlement from Judicial Watch, telling her that: "As for Judicial Watch, proceed at your own risk, which is substantial:" (Plaintiff's Exhibit 77). Finally, he told her in an email dated August 15, 2007 that:
Stephanie, your conduct necessitates lawsuits and this is just the beginning. I will treat you legally as I treat others who behave the way you have. .... Please be advised that you Mike and your mother will be held legally accountable... (Plaintiff's Exhibit 91)
57 DR-H733 This is the same man who wants the Magistrate to believe that he was so cowed by the Defendant that he never once took the children to see his mother, not even when he had possession of them more than a thousand miles away from the Defendant. It is an unbelievable contention. The Plaintiff's behavior since July 2007 coupled with his admission that the children never met his mother leads inexorably to the conclusion that the Defendant did not prevent the children from seeing the Plaintiff's mother before she died. If she was deprived of the opportunity of seeing her grandchildren, it was the Plaintiff's doing not the Defendant's. That, however, did not stop him from blaming her.
He also accused her of "confiscating" the gifts that he sent to the children, especially the. Amigo cell phones that he bought for them and the Crosses with the Stars of David on them. He also maintained txhat she failed to give the children the cards as well as other gifts that he sent them. With the ex_ception of the crosses and the cell phones, the evidence that the Defendant confiscated the clothes and presents that he sent the children and that she refused to give them the cazds and pictures is spotty at best. The Plaintiff made a lot of allegations, but was unable to really back up any of them.
The one piece of clothing that there is no dispute that Lance received and that the Defendant wouid not let wear is a black tee shirt with three drunk frogs standing over a caption that reads: "TOADILY WASTED" (Defendant's Exhibit Z). The Plaintiff initially denied sending it, but then added that if he had he did not see what was on it. In almost the next breath, however, he inentioned that Lance likes frogs. It was not a performance that inspired confidence in the Plaintiff's credibility.
The Plaintiff either sent the shirt or he didn't. His credibility is so bad that the undersigned finds his denial unconvincing. Further, for him to argue that he somehow picked out a black tee shirt with three inebriated green amphibians cavorting over a caption that reads "TOADILY WASTED" and didn't see what was on it when the pictures and the words take up the middle of the shirt is absurd. It is especially impossible to believe that the Plaintiff did not pick out the shirt and send it to Lance when he testified that Lance likes frogs. His testimony indicates that the Plaintiff knew exactly what he was doing when he sent the shirt to Lance. The Defendant believed that it was a completely inappropriate gift for a child and refused to allow Lance to wear it. The Magistrate cannot and will not fault her for that.
lt is easy to understand why the Plaintiff would have wanted to distance himself from the shirt. Because it was inappropriate for a child, it is another exampie of the Plaintiffls lack of boundaries. It is the kind of thing that the Magistrate would have expected carousing college students and vacationing adults to wear, not a child and the Plaintiff should have realized that. Of equal importance, the shirt supports the Defendant's claim that the Plaintiff mocked Isabelle's underwear and sent her with a woman friend who purchased a pair of thong underwear for her following which he encouraged her to wear it (Defendant's Exhibit D). At the time, IsabeIle was only 9. The Magistrate finds that such clothing was grossly inappropriate for her.
The Plaintiff adamanfly denied that he had done any such thing or that the underwear thaf was purchased fot Tsabelle was inappropriate for a little girl. There are a number of reasons not to believe the Plaintiff. The initial one is that the Plaintiff never explained why his female friend
58 DR-H733 would have taken Isabelle to purchase underwear in the first place. The Plaintiff never answered that question. There is no testimony or any other evidence in the record to suggest that the children did not have adequate clothing when they went to visit the Plaintiff. Certainly the Plaintiff never complained about the children's clothing or lack of it. The second reason is that dressing Isabelle in thong underwear fits into the pattem of behavior described in the notes the Defendant made before the divorce. Although the Plaintiff referred to them as "smears", implying that the Defendant created them out of whole cloth, he never esplained why he gave up the custody fight or why he agreed that the Defendant could limit his overnight contact with the children.
The Plaintiff would certainly like tha Court to believe that the conduct described in the Defendant's notes are smeazs, but t.here is at least one incident that that he admitted to that corroborates one of her entries. According to the Defendant's 3anuary 18, 2003 note, the Plaintiff came into her house and went upstairs where he looked to see if his picture was in Isabelle's room. When he couldn't find it he became upset. During the course of his testimony the Plaintiff admitted that he would go into the Defendant's house and put his pictures there only to return later to Iook for them, always discovering that the pictures would be gone.
Their disappearance, apparently, is what lies at the heart of the Plaintiff s claim that the Defendant confiscated the pictures that he sent to the children. (If the Plaintiff is referring to the picture of him that he ernailed to the Defendant asking her to give it to the children (Defendant's Exhibit A), there is no evidence that she didn't. The important point is not that the Defendant put the pictures away, assuming that she did, but that the Plaintiff refused to acknowledge that the parties' separation and subsequent divorce created a line between them that he was not supposed tb CTOSS.
In addition, the comments attributed to the Plaintiff about Isabelle in the Defendant's notes (Court's Exhibit i) aze in keeping with purchasing thong underwear for her. Pinally, and most importantly, the Magistrate has repeatedly concluded that the Plaintiff's testimony is simply not credible. He has.demanstrated a pattern of making allegations, such as that the Defendant did not tell him about Lance's accident for a day and a half or that he did not have notice of Isabelle's Pirst Gommunion well in advance of the event or that Sister Linda confiscated the suit cases and gi8s that he brought for the children as well as the numerous allegations that he lodged against the Defendant, only to have to confront evidence that his version of evenfs had no foundation in reality. In every case he continued to maintain his position regardless of the lack of evidence to support his statements or in the face of evidence to the contrary.
The tee shirt and the thong underwear are no different. For the reasons set out above the Magistrate fmds that the Plaizttiff knowingly purchased and sent the "TOADILY WASTED" tee shirt to Lance and also allowed a woman friend to purchase thong underwear for Isabelle and then encouraged her to wear it.
There is no question that the Defendant would noi allow the children to have the cell phones while they were in her possession. She did not believe that children of Lance and Isabelle's ages needed the phones. Their purpose, as the Plaintiff made clear was to enable him
59 DR-A'/33 to contact the children whenever he wanted. (Plaintiff s Exhibits 77 and 78) The Defendant did not want the Plaintiff to call the children while they were getting ready for school. (Plaintiff's Exhibit 45) He, in tum, maintained that he had called them every morning for the preceding three ysars and there was no reason that he should not be allowed to continue the practice, especially since the children liked to talk to him in the morning.
He also introduced a message that Mike DeLuca left on his answering machine in 2006 in which Mr. DeLuca stated that there is no reason he can't talk to the kids (Plaintiffls Exhibit 106). It is not clear why the Plaintiff introduced that exhibit as it doesn't contradict the Defendant's position that he could call the children, but that she did not want him to ca11 while she was trying to get the kids off to school. It simply says that the Plaintiff can call the children. Except for trying to limit the eazly morning calls on scheol days and complaining about the repeated calls ±he Defendant never said that the Plaintiff could not call the chiidren. In view of the record, Mr. DeLuca's message is a non sequiiur and, therefore, entitled to no weight.
With regard to the issue of morning phone calls on school days, theie is merit to both positions. The Plaintiff spoke of calling the children in the morning on a daily basis for two to three years. From his perspective there was no reason that the practice could not continue. From the Defendant's point of view, the calls disrupted the morning routine. Considering the Plaintiff s lack of candor and the Defendant's need to get the children to school the undersigned cannot conclude that if there was a practice such as the Plaintiff described the Defendant did not violate the terms of the parties' divorce decree or abuse her position as custodial parent when she advised the Plaintiff not to call in the mornings on school days.
By the same token, the fact that the Defendant refused to allow the children to have the cell phones wlvle they were in Cleveland doesn't make her a bad parent or provide grounds to change custody. It especially doesn't in the face of evidence of some of the Plaintiff's conversations with the children. Specifically, in response to some communicarion with the Defendant in which the Plaintiff iold her that he wants her to get the children to have "long and meaningful conversations" with him she emailed back:
Remember, they are. not adults yet, they are 5 and 7 years old. I cannot always get to the telephone, which you do not understand. In the past, you have sent the police to my house when I was not available by telephone. Please do not call here in the morning on school days anymore, as I will not answer the telephone. This is a very busy and hectic time, as I am trying to get the children off to school. (Plaintiffls Exhibit 45)
In another email sent the same day the Defendant pointed out that the Plaintiff had called the house seven times that day before 10:30 a.m. and that he sometimes catled 10-15 times a day.
The Defendant's complaint's about the Plaintiff s failure to understand that children of Lance and IsabeIle's ages don't have long, meaningful conversations with adults is echoed in an email the Plaintiff sent the Defendant on Januaay 12, 2006 in which he complained that he didn't: 60 DR-H733 ... have a chance to talk to the kids yesterday as they were "preoccupied" when I called, Thanks .for having them ready tonight to talk with me without distractions. (Plaintifi's Exhibit 59 and Defendant's Exbibit U)
The children, in other words, were being children; something the Plaintiff either could not understand or accept.
More damaging to the Plaintiff's position is the testimony of the Defendant, Mike DeLuca, Gisela Luck, the Defendant's mother, and Dana Ginley with regard to the children's reactions to the Plaintiff's calls. Li_ke the Plaintiff, the Defendant as well as her husband and her mother have a lot to gain or lose depending on the outcome of these proceedings. For that reason it is natural to be suspicious abaut what eaoh side has to say about the other. Nevertheless, the Magistrate fmds that the Defendant's testimony credible with regard to Lance becoming so upset with the Plaintiff when the two spoke after Lance's accident that the child threw the phone across the room. The reason he did is that the Plaintiff was pushing him to say or at least believe that the accident was the Defendant's fault. Mike DeLuca reported the incident in much the same way, testifying that he heard Lance say "No dad, that's not wliat happened." and "It wasn't her fault." more than once before he threw the phone across the room out of anger. Since that was a mantra that the Flaintiff began chanting on the morning of July 4^' when he learned of the accident and has not stopped repeating since then, the Magistrate fmds that Mike DeLuca's and the Defendant's description of both the nature of the Plaintiff s conversation with Lance and the child's reaction to the Plaintiff credible.
Ms. Ginley testified that she was in the house approximately 10 times when the Plaintiff called the children. About half of those calls went well. The other half were problematic with the children telling the Plaintiff that they were playing and didn't want to talk. They would hang up only to have him call back 2 to 3 times. The children, in her opinion were often frustrated by the calls. She also testified to the children's demeanor during the calls, telling the Court of their resistance at times when the Plairitiff was calling and that their demeanor was defensive.
Another friend of the Defendant's, Molly Yohann, also testified that she had been present several times when the Plaintiff was on the phone arid the children did not want to speak with him. She further stated that the Defendant wouid try to encourage the children to at Ieast say hello to him, but they refused to. Eaen though both women are close friends of the Defendant, the undersigned finds their testimony about the children's reaction to the Plaintiff's calls and the children's reactions to him credible.
By the same token, in spite of the obvious bias that Mike DeLuca must be presumed to have as the Defendant's husband the Magistrate nonetheless fmds his testimony, not just as it relates to the children's reactiori to the Plaintiff's calls in particular, but the rest of his testimony in general credible. During the course of his time on the witness stand Mr. DeLuca spoke of his efforts to facilitate the Plaintiff s contact with the children even to the point of driving them out
61 DR-H733 to the airport where the Plaintiff was staying or going downtown to pick them up. He also testified to Yris efforts to act as a go between the Plaintiff and the Defendant. It was during that period that the Plaintiff told him that the Defendant's mother was a Nazi who put words into the Defendant's mouth and that the Defendant had mental problems and wasn't a good mother.
It would be easy to ignore those claims coming as .they do from the man who married the Defendant except that the Plaintiff has repeatedly told anyone who would listen; the Hot Line worker, Sister Linda, Ms: Blue and the Court the same things about the Defendant. The claim that the Defendant is a compliant creature without a mind of her own is also nothing new. The idea that she cannot act or think for herself lies at the heart of the PlaintifPs attack on Ms. Jambe who, he beiieves, orchestrated every aspect of this case including telling the Defendant to confiscate the necklaces that he sent the children (Defendant's FFF).
Mr. DeLuca also credibly recounted the problems he witnessed when Isabelle and her father were talking. According to Mr. DeLuca, the conversations would start out cordially and sometimes stay that way. At other times she would become emotional, get upset and run into the bathroom and lock the door. Even though she did, he could hear her.shouting at him. He also reported that he has disciplined Isabelle when she was disrespectful to the Plaintiff and cursed him. On the other hand, he also recounted that the phone call between the Plaintiff and the children the weekend before he testified went well. Lance briefly talked to his father and then took the phone upstaizs to Isabelle who also spoke with the Plaintiff.
In the face of all of the evidence the Magistrate finds that the Defendant neither had to persnit the children to have the cell phones that the Plaintiff gave them nor did anything wrong by not letting the children have them. Further, the evidence doesn't support the Plainti^s claim that the Defendant would not let him talk to the children. He had access, but the record is convincing that it was he and the way he dealt with the children that caused the problems, not the Defendant. There is also no proof that the Defendant confiscated the Crosses with the Stars of David that the Plaintiff sent the children or that she refused to give them the gifts and cards that he sent. The crosses took on speciat significance for the Plaintiff who saw them tied up with his "Jewish heritage", which comes from his mother who was Jewish. He was, however, raised a Christian. He told the Court that he attends Christian services at Ted Baer's house in Califomia and goes to an Orthodox service in Beverly Hills. While he may have attended Jewish services during his marriage to the Defendant, he did not take the children with him. He also failed to mention that he took the children to 3ewish services whenever they were with him in Florida or when he lived in Cleveland. Further, there is no evidence that he has ceiebrated any of the 7ewish holidays with the ohildren, discussed what it means to be 3ewish with them or introduced them to Jewish history or culture. Against that background; there is no question that Lance and Isabelle were baptized in the Catholic Church, have attended services at Gesu and were enrolled in Gesu school. That doesn't mean, though, that they should not know that their grandmother was Jewish or what being Jewish means for their father. There is simply no evidence that the Plaintiff ever made that effort up to the time of trial. 62 DR-H733 Nonetheless, the Plaintiff intimated that Lance knew enough about his background that when he, Lance and Mike DeLuca were in church Lance "screamed out" "Am I Jewish Mike?" in response to which Mr. DeLuca "screamed' "You're Christian.". The Magistrate doesn't believe that either Lance or Mr. DeLuca "screamed" anything. Instead, the Magistrate fmds given the PlaintifPs almost total lack of credibility and his repeated efforts to paint almost everyone in the worst possible light that his description of his son's and Mr. DeLuca's behavior is nothing more than another attempt to depict events not as they happened, but as he wants the Court to believe that they did.
Whatever the decibellevel that night, Mr. DeLuca's response to Lance's question upset the Plaintiffwho tald Mr. DeLuca to mind his own business. Later on the Plaintiffremembered the story differently, tell;ng the Court that the incident occurred at the Christmas pageant (at Gesu). He entered the church at which time Lance was sitting with the Defendant's mather. Lance asked to sit with him, which he did. While they were sitting there before the pageant started the Plaintiff told Lance that had gotten him the Star of David with the Cross on it.
It was at that point that Lance turned to Mr. DeLuca and asked if he was Jewish to which Mr. DeLuca responded that he was Christian. The Plaintiff further testified that Mr. DeLuca wanted him to go outside and fight. Not surprisingly, Mr. DeLuca remembered the story somewhat differently. It started, according to Mr. DeLuca, when the Plaintiff demanded to know why he was telling tlte children that they were not 7ewish. He did acknowledge telling the Plaintiff that they should go outside, but that was only to avoid the obvious scene that the Plaintiff was causing because he was loud. Neither man went outside and the night ended with the Piaintiff asking if he could take the children to Geraci's and the Defendant agreeing that he could. On the witness stand, Mr- DeLuca acknowledged telling Lance in response to a question that he was Roman Catholic. He added that he was talking about the religious aspects not his heritage. Under all of the circumstances known to the Court the Magistrate can neither fault Mr. DeLuca for his answer nor find in it the denial of the Plaintiff's Jewish heritage that he sees.
There is one another point that the Plaintiff repeatedly attempted to make, which is that the Defendant tumed the children against him so that Isabelle is now afraid of him when she wasn't before. There is no question from the testimony of two of the PlaintifPs witnesses and the pictures that he introduced (Plaintiffls Exhibits 1-2& and 102) that prior to September 2007 the children did not display any outward concern about the Plaintiff to third parties or appear to be afraid of him while they were in publia The Defendant, her mother and Mike DeLuca all related a different story.
They testified of the children's reluctance to go with the Plaintiff and the children's reticence to speak with him. In that regard both Ms. Luck, the children's grandmother, and Mr. DeLuca spoke of Isabelle hiding under the bed when the Plaintiff came to pick up the children. Ms. Luck went on to add that over time Isabelle's reticence seemed to disappear. GVhat didn't and what both Mr. DeLuca as well Ms. Luck also testified to was witnessing the clrildren's discomfort from the Plaintiff kissing them all over and hugging them excessively. It was something they both mentioned that the children obviously didn't like and that they would tell the Plaintiff to stop, but he wouldn't. Isabelle told the sarne thing to Ms. WingIer when she
63 DR-H733 interviewed the child (Courk's Exhibit 1). The Plaintiff denied that he excessively kissed the children, but the undersigned finds his denial unconvincing.
As has been pointed out earlier in this discussion, the Magistrate concluded that the Plaintiff has repeatedly exhibited a poor understanding of other people's boundaries. His demonstrated failure to recognize where the boundaries lie has not only led him to repeatedly transgress them, but also in his unsuccessful efforts to deny that he did anything wrong. The same pattern is apparent in his excessive kissing and hugging the children. It is not just that he kissed the children too many times that Isaballe and the other witnesses spoke of, but that he kissed them all over their bodies (in Isabelle's words) that again points to the Plaintiff's lack of boundaries and his utter failure to recognize, much less understand the unpact of his actions.
The sPcond *easo_n_ for finding the Plaintiff's denial unconvincirig is his almost total lack of credibility. The Plaintiff has given the undersigned too many examples of his lack of veracity to put litt1e, if any stock in what he has to say unless there is some independent corraboration of his words. The final reason for concluding that Isabelle's declaration that "... he tries to kiss us... all over our bodies and we don't like that." is an accurate description of the Plaintifl's behavior is that it came out in the same interview in which she told Ms. Wingler that the Defendant told her that she had told her counselor that she had washed her father's privates.
The Plaintiff pilloried the Defendant for that, azguing that there was no truth to that or any of the other allegations that 5he lodged against him. The Defendant, not surprisingly, denied that she had said any thing of the sortio Isabelle. The problem for the parties is that the Magistrate cannot pick and choose from among Isabelle's statements to Ms. Wingler. There is no objective standard that would allow the undersigned to do that. The result is that the Plaintiff may have his victory as it applies to Isabelle's statement concerning what her mother told. her, but for the same reasons he cannot escape the conclusion that she told tbe truth when she told Ms. Wingler that he kissed her and Lance a11 over their bodies and they did not like it. By the same token, while the Defendant can take solace that the Magistrate finds Isabelle's statement about the Plaintiff excessively kissing her and Lance credible, she has to live with the concomitant conclusion that Isabelle told Ivls. Wingier the teuth when she said that the Defendarit had told her that she washed the Plaintiff's genitals.
The Magistrate finds that regardless of anything else; the Plaintiffls decision to seek custody of the children and his attacks on their mother turned Isabelle against him. In yet another example of his failure to grasp the impact of his actions the Plaintiff blamed the Defendant for that, repeatedly alleging that the Defendant told the children he was going to kidnap them. The first time the Plainfiff made the accusation was in a long email that he sent to the Defendant on December 20, 2007 (Court's Exhibit 1,.Pgs. 174-175). He made the same claim to Ms. Wingler the following month (Court's E^diibit I, Pg. 182). That would not be the last time he raised that hue and cry. As often and as strenuously as he made the claim, though, he was unable to produce anything to support it. The Defendant certainly denied that she ever told the children that the Plaintiff was going to kidnap them.
The undersigned is well aware of how difficult it is to determine which of two parties is telling the truth in a"he said she said" battle. In this case, there are two documents, both created
64 DR-H733 by the Plaintiff that support the Defendant's claim of innocence. The first is an email dated September 2, 2007 from the Plaintiff to the Defendant in wbich he documented his conversation with Isabelle the night before and in which he essentially accused the Defendant of poisoning the children's minds. As to his conversafion with Isabelle, the Plaintiff wrote:
Yesterday, I called at around Spm and per chance Isabelle answered the phone. Since I called at a time which is different than most tirnes that I call, I assume this is why you did not succeed at cutting thermoff (sic) from talking with me, as you do routinely.
I opened the conversation by telling Isabelle, as always, that I love her, miss her and that she is my favorite 1_ittle girl. Characteristically, she always responds " Dad, I love you and miss you too" This time, However; She responded abruptly by saying " I doubt that" I then repeated whatI had said, and she responded «Yeh, Yeh, Yeh!"
I then asked Isabelle why she felt that w.ay and she replied, "Because you are trying to take me away from mommy, my friends, my schaoi and Cleveland:' She added that I had not paid for her school. When I told her that that was not true, and it is not true, she said " Dad, I don't believe you anymore. You have ruined my life. I'm just a little girl." She repeated this many times during our conversation and was very agitated and would not let me tallc much. (At the end of our conversation, she hung up while I was speaking;} She even said emphatically that she would ca11911 if I ever tried to take her to Florida to Iive. To quiet her down, I told her she could like where she wants. (Emphasis added) (Plaintiff's Exhibit 93}.
It is notewarthy that while the Plaintiff stated that he told Isabelle that she could live anywhere she wanted, the promise wasn't true. The Plaintiff only mouthed the words in order to placate the child. Of greater significance, while Isabelle let the Plaintiff know in no uncertain terms how she felt, she never used the word "kidnap".
She also didn't use it when she and the Plaintiff spoke on February 7, 2008: The discussion covered a number of areas including the following exchange as memorialized by the Plaintiff:
LK then told IK that he missed her and Lance and loved them very much: LK added "Do you rrtiss your Dad." (sic) IK then responded "I'm not sure Dad." LK then asked "Do you love yaur Dad?" IK responded "I don't know Dad." LK then reminded IK of a11 of the good times they used to have going around Cleveland and in
65 DR-H733 Miami during vacations. IK responded, "Dad that was the past. Now is the future."
LK then asked IK what she meant. She responded, "I am happy where I am and don't want to ba taken to Florida and away from my friends and school." (Emphasis added) (Plaintiff' s Exhibit 101)
As was the case when the two tatked the preceding September, Isabelle used the term "taken" to describe what her father was trying to do. She never mentioned the word "kidnap" or said that the Plaintiff was trying to kidnap her and Lance. Based on those emails the Magistxate finds that it is the Plaintif:^s word, one that he not Tsabelle or Lance used. The corollary of that finding is that there is no evidence that the Defendant told the children that the Plaintiff was trying to or was going to kidnap them.
That said, there was one instance when the children were scared because the Plaintiff and Diana Klayman were driving around the neighborhood in 20071ooking for them. That they were afraid doesn't mean that the Defendant told the children that their father was going to kidnap them. It appears that at the time of the incident Isabelle, at least, knew that the Plaintiff had filed for custody. According to the Defendant, Isabelle learned of the Plaintiff s decision to seek custody when a process server attempted to serve her while she and Isabelle were sitting outside the house. The Defendant fiarther testified that the process server read the caption to her while Isabelle was present. It was apparently from those few words that the Defendant would have the Magistrate conclude that Isabelle was able to figure out that her father had launched a custody fight.
That may or may not be true. There is no question, though, that Isabelle knew too much about the conflict between her parents. By way of example, the Plaintiff complained in an August 15, 2007 email that Isabelle accused him of forcing the Defendant to spend $ 3,000.00 because of lawsuits (PlaintifPs E^dribit 91). Of greater significance, she knew that the Plaintiff wanted to take her and Lance to Plorida (PlaintifPs Exhibits 93 and 101). The Plaintiff doesn't believe that the Defendant was solely at fault for that. He also blamed her husband and her mother who, he believed, actively plotted to alienate the children and keep him away from him. (Plaintiff's Exhibit's 91 and 93) because she and her mother:
"... are very bitter and vindictive people and Mike has his own very serious problems which places the childfen (sic) at signifrcant risk..." (Plaintiff's Exbibit 93).
It came as no surprise that the Plaintiff never.explained why the Plaintiff and her mother were bitter or what Mike's problems are.
The point, though, is thaf Isabelle was aware of the Plaintiff's intentions and understood the ramifications of a victory by him. She left no doubt that she did not want to leaue Cleveland, did not want to leave her friends, did not want to leave her school and did not want to leave her mother. The Plaintiff seemed unable to grasp that his decision to seek custody could have any
66 DR-FI733 impact on his relationship with the childreu. He also failed to appreciate that his repeated questioning of the children could have a negative impact on the children and his relationship with them.
The Defendant's, Mike DeLuca's and Diana Ginley's descriptions of the children's reactions are consistent and credible; especially as it relates to the conversation between Lance and his father the morning after he fell off of the diving board (Ms. Crinley was not present at that time). The PlaintifPs insistence that Lance put the blame for the incident on his mother angered the child to the point that he threw the phone across the room.and refused to speak with him for a significant period of fime.
He was also upset that the Plaintiff verbally attacked Sister Linda when he and Dia I don't like him. He is so mean to everyone. He slammed my mom against the window and he hurts everybody." (Court's Exhibit 1) Ms. Wingler gave the Court no reason to doubt the accuracy of her recollection of what Lance told her or the child's sincerity at the time. Lance's declaration had nothing to do with the Defendant. The Plaintiff vehemently azgued otherwise, maintaining that until he filed to madify the allocation of parental rights, which lead the Defendant to file the false allegations that he sexually abused Lance he had a wonderful relationship with his son who deeply loved him. As evidence of that relationship he pointed to how happy Lance is in the picturas that he introduced. The Magistrate has no reason to conclude that Lance's is other than happy in the photographs. That does not mean, however, that the child's attitude did not change based not on what the Defendant did, but rather on his (the Plainfiff's) actions. There is one interesting piece of evidence regarding the children's attitude. It is contained in a voice mail that was left on the Plaintiff s answering machine (Plaintiff's. Exhibit 2'^. T7iere is no date on the message and the Plaintiff did not supply one. The Plaintiff testified that the message was from Isabelle who called after he left several messages for her to call hizn. The message is so garbled, though, that it sounds like the voice identified the caller as Lance. Regardless of whiclz child called, the only parts of the message that are understandable are a voice saying faxst "Hi Larry" and then at the end: "You can't blame this shit on us". Everything in between is unintelligible, with the result that it is impossible to discern what led to that final statement. The Plaintiff sees the hand of the Defendant in the message. To the extent that the Plaintiff means that the Defendant told Isabelle (assuming that it was her on the phone) to say . that or told her that their father couldn't blame them for this "shit", he was unable to provide any evidence to support that claim. On the other hand, the Magistrate has no doubt that Isabelle, at least, knew too much about what was going on between the parties. 67 DR-H733 The message is important for three other reasons. The first is that it conroborates Mr. DeLuca's testimony that he would discipIine Isabelle when she cursed her father. The message is evidence that the child could behave in that fashion. The second is that the message reveals that whoever made the call was angry with the Plaintiff and was openly declaring that he or she was not about to allow him to blame them or their mother for whatever had happened. Third, the call fits with an incident that occurred when the Plaintiff took the children to see Dr. Lovinger. The Plainfiff testified that while they were all in the room with Dr. Lovinger Isabelle got up, came over to where he was sitting and hit hirn in the face hard enough to knock his glasses off. The Plaintiff reported that when Dr. Lovinger asked Isabelle why she had done that the child said: "I hate my dad. He hurts my mommy." If Isabelle could do that she could just as easily have confronted her father on the phone, especially if she felt that he was wrongly accusing her. or Lance or her mother of something. Isabelle's explanation for why she hit the Plaintiff while they were in Dr. Lovinger's office was not the first time she had said something like that. She had made a similar statement to Ms. Wingler, telling her that: "I don't want to ever Iive with him and I want him to stop hurting all of us". (PlaintifPs Exhibit 24, Court's Exhibit 1, Pg. 97). Ms. Wingler also reporEed that Lance said much of the same thing, her records reporting that he told her: .., my dad keeps suing my mother and my grandma and Mike-he wants to have us and take us from our mom and wants us to live with him but we never want to live with him-ever! (Plaintiff's Exhibit 24, Court's Exhibit 1, Pg. 106) The Defendant admitted telling the children about the litigation as well as that the Plaintiff had sued her. She did not recall, though, if she had told them that their father had sued their grandmother, but someone did because that was the only.way that Lance would haue known that the Plaintiff had brought the Defendant's mother into the action. The undersigned cannot countenance the Defendant's decision to discuss the Iitigation with the children. It doesn't matter if she deliberately set out to tell them about the. ongoing custody battle or she simply answered their questions. In either case she was wrong to taIk to the children aboutlhe ongoing battle. On the other hand, they were bound to find out aboutthe fight because the Court took the step of appointing a guardian for them. It would have been almost impossible for the guardian to have explained why the children were taLking to him/her without giving some indication of the fight over them. That they might have ultimately learned of the batde, though, doesn't excuse the Defendant's decision to talk to the children about litigation. That she did doesn't mean that she was solely responsible for Isabelle's reactiori or, from the Plaintiffis point of view, her complete change of attitude toward him. The Plaintiff launched this battle on July 5, 2007 when he filed the motion to modify parental rights and responsibilities that is pending before the Court. At the time Isabelle was nine and one-half years old. She knew that her father was living in Miami, Florida while she and her brother had been fiving in University Heights for the better part of their lives. It is impossible to conclude that once she leamed of the nature of the Iitigation that she would not have grasped that the Plaintiff wanted to remove her and Lance from what was their home, their school, their friends and their mother. 68 DR-H733 That clearly upset her {Plaintiff's Exhibit 101). And while the Plaintiff may not think so, the Magistrate fmds that Isabelle was capable of forming her own opinions. In that regard she told Ms. Wingler on September 20, 2007, long before the episode with Dr. Lovinger, that her father: "...is just mean to everyone. My mom, my principal, me, Lance, and he tries to kiss us ...all over our bodies and we don't like that. (Court's Exhibit 1, Pg. 97) Even ignoring Isabelle's inclusion of her mother and Mr. Deluca in that list, she had reasons to believe that the PlaintifFhad been mean to her principal, Sister.Linda, as well as Lance and her. And it is impossible to ignore her complaint about being kissed all over her body. Those were her opinions based on her experience. The Plaintiff cannot blame the Defendant for that. Neither can he blame the Defendant for Lance's opinions. The Magistrate, as noted earlier in this decision, finds credible and persuasive the Defendant's description of Lance's reaction to the Plaintiff's attempt to pnsh him into saying that July 4'^' accident was his mother's fault. The Defendant certainly did not plant that idea in his head. By the same token, Lance had been present when the Plaintiff had called Sister Linda a liar. There is no reason to question the accuracy of the testimony regarding that incident or its . impact on him. In the same vein, he told Ms. Wingler that the Plaintiff pushed the Defendaut against the window. Having witnessed his father's actions Lance concluded, as his sister had, that the Plaintiff was mean and that "he hurts everyone". The Plaintiff never spoke to that allegation. it would be possible to argue that Lance was aoo young when the event occurred to iemember it, but for one thing: the Plaintiff's testimony about Lance's disclosure that he had been sexually abused at the same time as bis sister. The incident occurred when the Defendant and the children were living in Virginia. Lance was approximately two to three years old at the time. The Plaintiff told the Court that sometime in 2006 while he had the children in the car bringing them home from his Cleveland residence Lance blurted out "The same thing happened to me" meaning that he too had been abused. As a predicate to that story the Plaintiff mentioned that Isabelle would talk about the boy who had abused her. The Plaintiff never indicated that Lance was not telling the truth when he znade that disclosure. Further no one presented any reason to believe that Lance was not abused and did not recall being abused. By the same token, the Plaintiff failed to provide any reason why the Magistrate should conclude that Lance did not recall seeing his mother "... siammed against the window ..." by his father (Court's Exhibit 1, Pg. 97). The point is that regardless of what the Defendant may have told the children about the ongoing litigation, they had their own legitimate reasons to be angry with the Plaintiff. Isabelle also expressed other opinions when she and the Plairitiff spoke on February ^, 2008; opinions that the Plaintiff would like to lay at the Defendant's feet, but cannot. To do that the Magistrate would be to treat Isabelle as a lump of clay who was molded at will by the 69 DR-H733 , Defendant. Instead, the February 8a' conversation reveals that Isabelle had carefully thought about what was happening in her life and was struggling to deal with the situation as well as that she had come to some conclusions based on how the outcome of the litigation would affect her and her brother. That much is clear from the following exchange as memorialized by the Plaintiff: LK then told IK that he missed her and Lance and loved them very much. LK added "Do you miss your Dad. (sic)" IK responded that "I'm not sure Dad." LK then asked, Do you love your Dad?" IK responded, "I don't know Dad." K then reminded IK of all of the good times they used to have going around Cleveland and in :l^liami during vacations. IK responded, "Dad that was the past, Now is the future" LK then asked Ik what she meant. She responded, "I am happy where I am and don't want to be taken to Florid and away from my friends and school." IK then went into a discussion of her school saying "Dad I don't want you to come to my school anymore. It is embarrassing and Sister Linda does not like it " LIK then responded that the time he came was the only way to see her and Lance, since Mommy would not let LK and DK see or talk with them. IK responded, "I don't care dad. I don't want you to come to my school: ' LK replied that if that was the case, rnaybe IK should go to another school. (Plaintiff s Exhibit 101) The conversation is significant for a nurxrber of reasons. The first is that it demonstrates that Isabelle was struggling with her feelings about her father. Her responses to his questions were not canned, but rather represent the efforts of a 9 year old to understand what was going on and why it was going on. The second is that she had, what to her was a legitimate reason for asking the Plaintiff not to come to her school: The third is that the Plaintiff was either unable or unwilling to respect her position. He then made the situation worse by telling Isabelle that he might take her out of Gesu; which she had akeady told him she did not want to leave. In telling her that maybe she should go to another school the Plaintiff effecfive let her know that her feelings weren't legitimate or that he didn't cared how she felt. Actually, the Plaintiff was totally unconcerned with what Isabelle wanted or how she felt about her school as he left no doubt that if his bid to obtain custody of the children had been successful he intended to pull them out of Gesu. The gay clergy, the school's presence on a `°gay friendly" web site, the Cleveland diocese's alleged tolerance of pedophile priests and Gesu's position that Jews don't go to heaven because they are not baptized were more than sufficient reasons for him remove the children from the school as soon as possible. The Plaintiff. Of course, did not tell Isabelle how he felt about her school or his plans to the children's education when he took custody away from their mother. He is smart enough to have realized that if he did he would have driven an almost insurmountable wedge between them. 70 DR-H733 Children don't always get what they want. That is part of growing up. They sometimes have to leave a school they love because of events over which they have no control as is the case if their parents. get divorced or one is forced to take a job in another city. Those are legitimate reasons that force changes on the children that they may not Iike, but have to accept. The Plainiiff's reasons for demanding that the children leave Gesu don't faIl into that category. The Magistrate finds it would not be in the children's best interest to remove them from Gesu for the reasons the Plaintiff expressed. Most are his personal prejudices that have nothing to do with the children. While the Plaintiff may have chosen to 'ignore Isabelle's feelings and opinions, the undersigned cannot. The Magistrate can find no reason to question their legitimacy. Isabelle, as noted eaxlier in this discussion, had valid reasons ta want to stay in University Heights and want to stay in Gesu and wanf to stay with her mother. She also had legitimate reasons to be upset with her father. She was clearly able to voice those opinions as well as give him reasons for them. That the Plaintiff chose to disregard them or at least downplay tham doesn't mean that the = Magistrate must. She certainly expressed her views after the Plaintiff and his father sent her a silver engraved necklace at Christmas in 2008. (at another point in his testimony the Plaintiff inenfioned that he also sent a bracelet to her the same time). When he asked Isabelle if she liked it she allegedly replied either that it looked like a Mafia necklace or that it made her look like a gangster. The Plaintiff left no doubt who he thought was responsible for Isabelle's comments, telling the Court that in the past they (the children) said "thank you", but not since this started. Since the children had changed, the Plaintiff wanted the Court to lrnow that it was the Defendant who was responsible for the change because she had not taught the children to respect him. The undersigned agrees that Isabelle shouid have just said thank you and let the matter drop. That would have been the polite thing to do: That she didn't (if the Plaintiff can be believed) doesn't mean that the Defendant was teaching the children to disrespect their father or that she put it in Isabelle's head that the necklace was somehow Iess than pretty. The Magistrate takes judicial notice that children develop their own opinions about dress and style early. Except in schools like Gesu where the students are required to weaz uniforms, elementary schools are filled with children wearing different styles of clothing. They have their own tastes and styles. Some, it is tnxe, follow the trend set by others because they want to blend in. Others, though "do their own thing": All of this is simply a predicate to saying that the Magistrate never saw the necklace or Isabelle or has any way to know what she liked or didn't like. She had an opinion, which she expressed in not very subtIe terms. There was no evidence that Isabelle's opinion wasn't her own or that she was mindlessly repeating what someone else told her to say. The Magistrate will accept that she may have been less polite than she should have been. Even if that were not the case, the fact that she expressed an opinion did not make it someone else's. By the time she received the necklace she had been expressing her own views for some . fime as evidenced by the February 6, 2008 conversation with her father in which she told the Plaintiff in no uncertain terms that: "I am really angry. I don't want to come to Florida. I want to 71 DR-H733 stay here!" That led the Plaintiff to tell her that neither he nor Diana were trying to take her away from Cleveland. They only wanted to see and talk to her and her brother and "... know that they are safe". According to the Plaintiff s notes of the conversation (Plaintiff's Exhibit 101) lsabelle then asked the Plaintiff when he decided to sue her mother. His records show that he told her: ... it was after Mommy ^vould no longer let us speak with you and Lance or see you botfi. This LK added, was after Dad married Diana and Lance got hurt. This was a nice piece of propaganda, but the statement wasn't completely true as the Plaintiff The affidavit that well knew. He had filed suit on July 5, 2007, the day after Lance's accident. on July 3`d, the day before the accompanied his motion, however, had been notarized in Florida accident. Lance's fall, as the Plaintiff well knew, had absolutely nothing to do with his decision July 3, 2007. to seek custody of the children. That had already. been made sometime before Of greater significance, his alleged lack of contact with the childxen was only one of many grievances that he had with the Defendant. As he made manifestlY clear during his testimany he considered her unaffectionate and so consumed by self interest that she didn't care what hapgened to the children, exerted no effort to insure their safety and spent money meant for that the area in which the children their support on herself and Mr. Dehuca. He also believed lived posed a danger to them and the school they attended a potential danger because of the presence of homose^zal clergy as. ^'ell as that it was instilling beliefs in them that were hostile and demeaning to:his Jewish heritage. These were not new grievances that arose after the Plaintiff filed his motion. These were conditions that predated the filing of his motion. He did not tell Isabelle thaYor the extent of his compiaints. The rnemo. that the Plaintiff prepared of his conversation with Isabelle goes on to note that he reminded the child that she only has one dad. When she didn't respond he asked her if she had a father to which he noted she replied: "I don't know". According to the PlaintifPs writing Isabelle then turned back to the litigation, asking the Plaintiff ".. - howlong he was going to keep led the Plaintiff to ask her how she knew about the trial. Isabelle theWh ldead it this trial?" That that someone had eame to the house and "handed. it (the motion) to my Mommy. •. Magistrate has no reason to doubt the Plaintiff's recollection of his conversation with to her. The Isabelle as it relates to the Defendant reading the papers to her. The Plaintiff's notes .go on to indicate that Isabelle again asked the Plaintiff why he sued the Defendant to which he again responded that he took that step because the Defendant was not point, according to the Plaintiff s notes, the following exchange took letting him see her. At that piace: sit down and resolve things asked, "Why didn't you try to IK then that he had, but that Mommy with Mommy hefore?" LK replied go to Court if he did didn't want to resolve tbings, but told Dad to then praised IK for having a good idea and told IK not like it." LK and Mike to sit.down and discuss things and try to to ask Mommy 72 DR-H733 work thing out so everyone could be happy. (Plaintiff's Exhibit lol) The Plaintiff s side of the conversation makes for good reading, but again it is not the whole truth. The Defendant had told the Plaintiff to go to court, but that was on June 15, 2007 in one of a series of emails dealing with the Plaintiff's visitation and the children's activities, which the Plaintiff felt the Defendant had deliberately scheduled in order to interfere with his time with the children. The emails reveal that both parties were angry at and frustra#ed with the other. . Before telling the Defendant that he would: "... not be pushed and jerked around any longer. I have had enough!", the Plaintiff wanted to know when the Defendant her mother and Mike would be available so he could depose them (Defendant's Exhibit EE). These were not the words af someone who was willing to sit down and talk. The Plaintiff did make that offer in the email that he sent on July 4, 2007, telling the Defendant that she had until the end of the day to agree to put all legal proceedings on hold and sit down to discuss the many outstanding issues or he would take legal action because "...the kids safety is at stake". The Defendant did not respond and the Plaintiff initiated the present litigation.. What he did not tell Isabelle is that on October 2, 2007 he left a voice mail in which he told the Defendant that: "I'11 enjoy taldng you and the rest of your family legally apart." (Deferidant's Exhibits II and GGG). He also did not tell her that he advised the Defendant in an email dated September 7, 2007 that he intended to take the legal proceedings to a conclusion (Plainti^s Exhibit 93). Finally, he didn't mention the call in which he told the Defendant that he was willing to settle, but not now (Defendant's Exhibit i I). The Plaintiff could argue that he was always willing to halt the battle if only the Defendant would stop interfering with his time with the children. That, at least, is how he made it appear to Isabelle. He did not tell her the rest of his complaints about her mother, though. It is doubtfixl that if he had the child would have listened to him or believed him. Because he only told her a small part of the story he sent her on a fool's errand. She was to go to her mother and tell her that she had to sit down and discuss things with the Plaintif£ That was not going to happen and the Plaintiff had to know that it was nat going to happen. By the time he spoke with Isabelle iri February 2008 too much had happened, too many allegations had been leveled by each party against the other for this matter to. settle outside of a court room. The result is that Isabelle, if she had gone to the Defendant as the Plaintiff's messenger would have been in a no win situation, thrust into the middle of her parent's battle. The Defendant cannot escape censure for telling Isabelle about the litigation or for reading the motion to her, but neither can the Plaintiff escape condernnation for attempting to use Isabelle as his messenger. As a lawyer the Plaintiff knew that if he wanted to halt the litigation and try to reach an out of court resolution of the issues all he had to do was call his counsel and arrange a meeting with the Defendant and her counsel. Instead, he chose to put the burden on his daughter. That possibly would have led to a confrontation with her mother or opened the door for tYte Defendant to draw the child deeper into the fight. Whatever the outcome might have been, the Plaintiff had no inore right to place Isabelle in that position than the Defendant did by providing her with details of the battle in which her parents were so heatedly engaged. 73 DR-H733 With regard to the remainder of the PlaintifP s allegations, is true that the Defendant would not allow the Plaintiff to come to her house for Isabelle's First Communion party. It is, however, difficult to see how her failure to invite him to the house is evidence of anything other than the PlaintifPs failure to understand the nature of the parties' relationship at that point or that there were boundaries that he should not and could not cross. By the time of Isabelle's party the Plaintiff had been told in no uncertain terms that he wasn't to come to the house because of his behavior up to that point, which included walking uninvited into the house when he picked up and returned the children in December 2005 and refusing to leave when told to (Defendant's Exhibit E and F). The parties were not on the friendliest of terms by the time of lsabelle's party and had not been for years. To expect that under those circumstances he would have been invited into the Defendant's heme Pven if he had not engaged in the conduct described above indicates that the Plaintiff had absolutely no grasp of haw his behavior affected those he dealt with. It is also yet another indicia of his inability to understand, much less accept that he could have done anything wrong. While it is obvious to the undersigned that there is absolutely no substance to almost all of the claims discussed in th8 preceding paragraphs, the Plaintiff relenflessly repeated them as if by doing so he could convince the Court of their validity. Repetition, however, does not constitute evidence, nor byuttering the same complaints over and over again was the Plaintiff able to meet, let alone satisfy, the requirement of Section 3104.04 (E) O.R.C that in order to j ustify a modification of parental rights and responsibilities the moving party must be able to demonstrate: (1) that a change has occurred in the circumstances of the children or the children's residential parent (2) that the modification is necessary to serye the best interest of the children and (3) that the liarrn that the children will likely experience as a result of a change of environment outweighs the advantages of the change of environment. As discussed in the preceding paragraphs of this decision, even if the Plaintiff's motion to modify parental rights and responsibilities had not been dismissed it would have been denied. He was unable to establish that a change had occurred in the children's lives or the Defendant's. He also failed to prove that the modification was necessary to serve ihe best interest of the children. Finally, the nature of the Plaintiff's claims alorig with his inability to prove them by so much as a preponderance of the evidence leads inexorably to the conclusion that the harm likely to be done to the children by modify'tng parental rights and responsibilities as the Plaintiff reguested to make him the primary residentiai parent would do far greater harm to the children than would be done by leaving them in their present environment with the Defendant. The Magistrate further concludes that if the matter had proceed to the point that the undersigned would have had to consider the factors listed in Section 3109.64 (F)(1} O.R.G that with one exception they would have overwhelmingly established thaf it would not be in the children's best interest to modify the priox decree atlocating parental rights and responsibilities for the care of the children to the Defendant. That conclusion•would not change even if this Court were to apply Virginia law as the Plaintiff clairns it must because Section 20-I24.3 of the Virginia statues requires that a court consider almost the identical factors found in Section 3109.04 (F)(1) O.R.C. when determining what is in a child's best interest. 74 DR-H733 By way of example, the Magistrate finds that: (a) The Plaintiff wishes to be designated the residential parent and legal custodian of the children while the Defendant wishes to continue in that role. The Plaintiff testified that if he was awarded custody of the children he would move to the Cleveland area and place the children in some private schoql other than Gesu. Beyond that broad statement, the Plaintiff offered no evidence with regard to where he would live or how he would live here or what school the cbildren would attend if he had custody of them. It was the Plaintiff's obligation to supply that information, not the Magistrate's to fill the void by guessing. (b) While the children were not interviewed in chambers regarding their wishes and concems, there is more than adequate evidence in the record to lead the Magistrate to conclude that they do not want the present custody arrangement to change. Isabelle made that abundantly clear to the Plaintiff in a conversation that he memorialized in a memc that was marked Plaintiff's Exhibit 101. She also made it clear to him in a September 1, 2007 conversation in whieh she told the Plaintiff, according ta his email to the Defendant, that he was trying to take her away from her mother, her friends her school and Cleveland. Isabelle went so far as to tell the Plaintiff that she would call 911 if he tried to take her to Florida (Plaintiff s Exhibit 93). (c) The children have a good relationship and interaction with their mother and stepfather as well as with their grandmother. Their relationship with their father is more problematic.. There are times when the children have clearly enjoyed being with him. Many of those times appear to have been at restaurants, amusement parks or parties. There is also evidence from one of the Defendant's witnesses that the children did not seem to be afraid of the Plaintiff when she.saw them together in public. Ori the other hand, there is just as much if not more evidence that the children are very troubled by aspects of their relationship with the Plaintiff, especially his constant questioning of them as well as kissing them all over their bodies, which he would not stop even when they asked him to. (d) The evidence of the children's adjustment to their home, school and community is overwhelming positive. They have attended Gesu since they moved her from Virginia in 2004. Their school records (Court's Exhibit 1 and Defendant's Exhibit MM ) reveal that both Isabelle and Lance are exceIling in schooI. Isabelle is an honor's student and Lance has progressed rapidly since entering school. Her mother reported that Isabelle, who is in the sixth grade, is a"pal" to younger students. There is nothing in the record to suggest that they have had any problems in school or have displayed any reticence about attending the school. The children also attend church at Gesu, which is where their mother and grandmother are also members and where Isabelle had her First Communion. 75 bR-H733 'The children, as evidenced by some of the emails between the pariies, have friends in the neighborhood as well as at school. Lance has played baseball, tackle faotball and takes swimming and tennis Iessons. IsabeIIe has participated in dance class and had been in Brownies, plays volleyball and also takes tennis lessons. In addition she is in the choral club a Gesu. The evidence indicates that the children enjoy those activities. Isabelle has made it alear to her father that she wishes to remain in Gesu. The Plaintiff has made it just as clear that if he were allocated the parental rights and responsibilities of the minor children he would remove them from Gesu. He is convinced that the presence of gay clergy and the school's teaching regarding Jews is so inimical to their well being that they cannot be left in that school. There is noting in the record, however, to suggest that he ever looked at any other schools or had any idea what schools he could enroll the children in or even considered how the change in schcols v^ould impact the children or that he even cared how it would. There is obviously a pool in the community that the children seemed to enjoy gaing to. Finally; tbere is nothing to suggest that the children are not adjusted to their home. The Defendant is a stay at home mother who also volunteers at the schooL The children have accepted Mr. DeLuca as an adult figure in their lives and from his testimony as well as the Defendant's and Ms. Blue's there is no reason to doubt that he has anything but a good relationship with them. And except for the Plaintiff's allegations, about Mr. DeLuca offering Lance beer and cigarettes and spanking him, . he never produced any evidence that the children didn't have a good relationship with Mr. DeLuca. The Plaintiffdid challenge the Defendant's fitness as a parent and also alleged that she is cold and doesn't display real affeotion toward the children, but as noted earliet in this discussion, not only is there no evidence to support those allegations evsrything points inthe opposite direction. (e) The evidence reveals that the children are healthy. Lance's arrn has healed without any problems. While the Plaintiff testified to some health problems, neither he nor the Defendant suffer from any debilitating physical problems. Each parry raised questions about the other's mental health. The record indicates that the Plaintiff hired 1Vlichael Leach, Ph.D. and the Defendant Nlark Lovinger, Ph.D. to conduct custody evaluations that would have involved psychological testing. Neither Dr. Lovinger nor Dr. Leach submitted a report nor testified in tlus matter. The Plaintiff also refused to authorize Dr: Schwartz to release his records from which the Magistrate could draw an adverse inference. The Plaintiff did admit that he had been prescribed Zimbalta, an anti-depressant, and a tranquilizer that he took every day. There was no other evidence of either party's mental health. (f) The Plaintiff has not paid chiId support since sometime in 2008. He is also not paid the tuition for the children's school as he is required to do under the parties' divorce deeree. (g) Neither parent has been convicted of or plead guilty to any criminal offense involving any act that resulted in a child being abused or neglected. 76 DR-H733 (h) The Defendant has lived in the same house since 2004. Duxing the course of the trial the Plaintiff testified that he was sleeping on the floor of his office in California. He also testified that he was essentially bankrupt. His counsel informed the Court in December 2009 that the Plaintiff had so little money that he was living with his client in Washington D.C. and did not have sufficient fund to enable him to travel to Cleveland to fmish the trial and wasn't sure when the Plaintiff would have the necessary funds to do so. The Defendant did indicate that if he were to obtain custody of the children he would move to Cleveland, but he had no concrete idea where he would live. Taken together, those factors along with the numerous unsupported allegations that the Plaintiff made concerning the Defendant that were discussed earlier in this decision would have Iead the Magis>rate to conclude that there was absolutely no basis whatsoever to warrant modifying the order of the Virginia Court granting the Defendant sole custody of the minor children. The only reason that the Magistrate is relieved of writing those words is that the Defendant's motions were dismissed due.to his failure to prosecute them. Not one to recognize the obvious, tlie Plairztiff argued that he not only presented more than adequate evidence to establish that it was in the children's best interest that he be named their residential.parenf and legal custodian based on the allegations outlined in the preceding paragraphs, but also because the Defendant, with calculated malice, made a false. allegation of sexual abuse against him in an effort to thwart his atteinpt to wrest control of the children away from her and then continued to make that claim and use it.as a basis for withholding the children from him eventhough she knew it was false. It is an intriguing argurnent for a number of reasons, not the least of which is the Plaintiff s claim that the timing of the allegation is proof of both the Defendant's perfidy as well as that the allegation was a calculated gambit deliberately played to defeat his attempt to gain custody of the children. What makes the Defendant's claim that the timing of the allegation evidence of its falsity so interesting is that the same charge can be leveled against him since he contacted 696-KIDS on July 12, 2007, the day before the Defendant and her fiance were to be married. Applying the Plaintiff s logic means that he knew that there was no substance to the allegations that he leveled against the Defendant's fiance and only called 696-KIDS in an effort to disrupt the marriage and perhaps take Mr. DeLuca completely out of the children's lives and, therefore, out of the Defendant's. . The issue, though, is not whether the Plaintiff attempted to wreck the Defendant's marriage, but wh^ther she deliberately made and continued to press a false allegation. There is no question that the Defendant believed both that the Plaintiff touched Lance while the child was in the bath tub and that she believed that when he did he sexually abused the child (Court's investigated the Exhibit 1, Pg 174). As noted earlier in this discussion, the social worker who coinplaint, which was called in by the child's pediatrician, concluded after an extensive investigation, that the allegations of abuse were indicated; which means that the investigator found circumstantial or other. isolated indicators of child abuse or neglect (Court's Exhibit 1, Pg 193). She had reasons for. that conclusion, which she was able to support by her observations and by those of the child's pediatrician. 77 DR-H733 Both observed similar behauior. The detective from the Sheriff's Departtnent who interviewed Lance on 7une 19, 2008 noted in his report {Defendant's Exhibit 00) that: While observing the coloring book lance (sic) was given prior to the start of the interview, I noticed a change in his coloring pattern. Tt appeared more aggressive and he in fact rubbed the marker into the book so hard that he broke through the pages into the table. I observed this to be an indication of the child being aggressive and/or disturbed and clearly uncomfortable. During the course of his testimony the detective added that when Lance became upset he began crayo^.ing in aircles on to the table 1_eadiig the officer to conclude that the child was upset by the topic of conversation. • From the detective's notes and testimony it is clear that Lance was upset with the Plaintiff who he characterized as mean as well as stupid and a" geek" and a"nerd": The officer's notes go on to state that Lance defined a nerd ".... as a weird person who does weird things" (Defendant's Exliibit 00). The record also reveals that Lance told the detective about the time that his father came to Gesu, the detective's notes revealing that Lance told him: ... his father was really mean to the principal at the school and she is really nice. He displayed pleasure as he said she eventually kieked his father out. Lance indicated that he enjoyed it when the principal kicked his father out of the school. While he could remember that incident, which had happened less than a year before the interview, he was not willing to talk about the good times that he had with his father. On the key issue of whether his father touched him and how, Lanee could not recall . exactly where or when it happened, but he was consistent with regard to what happened; telling the officer that he had been in ihe bathtub when his father, who had been washing him, put the soap and washrag down and touched his privates. Lance did not know why his father had done that but he was adamant that he father was neither washing nor drying him off at the time. Tha pediatrician testified that Lance was compliant when she examined him in 2004 until she tried to examine his genitals. Then he became combative. The pediatrician went on to testify that she found Lance's behavior out of the ordinary and; in retrospect, a red f1ag: On the other hand she testified and her notes aiso reveal that Lance was initially reluctant to allow the pediatrician to examine his genitals on September 12, 2007, but agreed to when his mother was in the room. He also exhibited poor eye contact and told the doctor that his father "hurts my mom". Finally, lre gave a"negative response" when asked if he had been touched in his private area (Court's Exhibit 5). It was apparently those observatioris plus her own that lead Ms. Wingler to conclude that the abuse accusation was indicated. It is tnze that her determination was eventually overruled by a senior social worker ai the end of some kind of process in which 78 DR-H733 neither the Defendant nor her counsel was allowed to participate and in which the Plaintiff himself did not speak, although he was present. Although the Plaintiff was irate over what he believed was the Defendant's deliberate attempt to paint him as someone who sexually abused his son in spite of evidence to the contrary, he was even more outraged by her counsel who he repeatedly attacked on the grounds that her conduct was morally, ethically and legally corrupt. The Plainti^s distain for Defendant's counsel reached such a fevered pitch that his wife's conduct became secondary in his eyes. She comes off as almost a puppet manipulated by Ms. 7ambe for the express purpose of forestalling him from obtaining custody of the children or seeing them or talking to them. That attiiude and his contempt for Ms. Jambe permeated his testimony and was obvious in the ccu^plairt ccnee;,.ing her alleged une±hical and unprofessional conduct that the Plaintiff sent to the Ohio Disciplinary Counsel on January 26, 2008 (DefendanYs Exhibit AAA} as well as in the Ietters he sent to Magistrate Mills (Defendant's Exhibit BBB) and to the Director of the Court's Legal department (Defendant's Exhibit CCC). Not only did he believe that she was unethical and immoral, but he also accused Ms. Jambe of engaging in criminal acts because she allegedly obtained documents that Diana Klayman allegedly stole from his house (Defendant's Exhibit CCC). He also accused Ms. jambe of fraud, conversion, invasion of privacy, intentional infliotion of emotional distress and civil theft in the complaint which he and Diana Klayman filed against Baker & Hostetler as well as two managing partners and her co-counsei, Mr. Rollinson (Defendant's Exhibit IIII). In Paragraph 48 of that complaint, which is dated June 11, 2008, the Plaintiff alleged: Defendants, each and every one of them also intended and have inflicted erriotional distress on Diana Klayman in ways which include but are not limited to: 1.) Making false, outrageous and now disproved charges against her husband, Larry Klayman, concerning his children, just after they were married. 2.) Making false statements to the children, which were then repeated to Diana Klayman and Larry Klayman that they intended to kidnap the children and that Larry Klayman is too old to have other children with his new wife, Diana. 3.) Threatening Diana Klayman with being joined as a parry to the custody case and, even though no such joinder has occurred, sending her pleadings to her residence in Miami-Dade County, Florida, that do not relate to her at all, just to continue the threatening conduct intended to inflict emotional distress; (see Exhibit F which are (sic) incorporated by reference) 4.) Browbeating and demeaning her at deposition; 5.) Treating her in condescending, threatening and abusive way as a result of prejudice and racism toward her Latin ethnicity and her heritage; age and gender; 5.) Publishing false information about her and other actions which will be uncovered more fully in discovery. 79 DR-H733 During the course of the Plaintiff's testimony, he told the Court that Diana Klayman had been involuntarily hospitalized because of her addiction to pills and for what the Plaintiff described as a nervous breakdown. Although he had every opportunity to do so, the Plaintiff failed to make any mention of Ms. Jambe's actions or the Defendant's as a cause of his second wife's hospitalization or that they or the proceedings in this Court had anything whatsoever to do with the deterioration of her mental state. The Plaintiff was really in no position to make that assertion in view of the complaint he filed against Diana Klayman (who he identified as Diana Yazbeck Mejia), her ex-husband, her Miami divorce attomey, his attorney, the Miami Police Department and other individuals in 2009 because in Paragraph 10 of that complaint he alleged: Defandant Mejia's highly uns±abls mental state, wbich prevented her from making an informed and reasoned consent to marry Klayman particularly in light of her continued love for Defendant Yazbeck... (sic) (Defendant's Exhibit HFI) Diana Klayman, in other words, had suffered from significant mental problems that pre-existed her contact with this Court or Ms. Jambe. This is the same woman whose praises the Plaintiff had earlier sung; the woman to whom he was going to entrust the children. The testimony and exhibits as well as the record lead the Magistrate to conclude that there is absolutely no substance whatsoever to support any of the claims the Plaintiff made in Paragraph 48 of the complaint he initiated against Baker & Hostetler and Defendant's counsel. A review of the Florida action reveals that Plaintiff was particularly incensed that Defendant's counsel was able to obtain copies of records from Colonial Bank, records that the Plaintiff claimed had absolutely no relevance whatsoever to these proceedings. Judge Russo disposed of that argument on June 23, 2008, finding that because the Plaintiff had filed a motion to modify child support, his income and his household income were both relevant to this proceeding. Of equal significance, Judge Russo also found: ... blatant misrepresentations in a Mofion to Quash filed by Petitioner and his spouse in Alabama. They alleged that the subpoena was issued at a time that this Court did not have jurisdiction due to a pending interiocutory appeal (not true). Petitioner also characterizes this as a"child custody proceeding", alleging that financial matters are not at issue. However, he failed to disclose to the Alabama Court that his own Motion to Modify Support was pending at all relevant times, wherein the disclosure of financial information is required. In an attempt to skirt the impact of that naling the Plaintiff subsequently dismissed his motion to modify child support. Even if he hadn't taken that step his income would still be relevant because his motion to modify parental rights and responsibilities continued to pend. 80 nx-x^ss If he was successful in obtaining custody of the children then the Court would haue had to enter a new support order, which would have required that it have a full account of the PlaintifPs income. Since the Magistrate dismissed the Plaintiff's motions, it is unnecessary to take that step. The Colonial Bank records (Defendant's Exhibits W& X) are still relevant, though, because a review of those documents along with checks written on Sun Trust Bank (Defendant's Exhibit I^ and the Plaintiffls testimony lead to questions about his credibiliTy and his use of Ms. Yazbeck and others to shelter income. (The Plaintiff testifited at one point that his organization paid her $ 8 5,000.00 at a time when he eamed nothing.) The PlaintifPs credibility in that area is further undercut by the fact that he couldn't remember if he filed tax returns in 2007 and 2008. It is simply inconceivabie that the Plaintiff, a lawyer with the reputation he purports to have, could not recall in mid to late 2009 if he filed 2007 or 2008 tax returns. He shc^ :^ed ^he same lack ef candor numerous other times durir.g +..he co>;rse of his tesrimony, declaring at one point that the Defendant did not notify him until the day before Isabelle's First Communion of the upcoming event in order to keep him from appearing and participating in the ritual. On May 3, 2006 he complained to his lawyer at the time that until he received a copy of the letter from the attorney who was then representing the Defendant he was unaware that Isabelle was having her First Communion that weekend. He went on to add that as of that date he still did not know the date time or glace of the rite (Plaintiff's Exhibit 87). That wasn't true. When confronted during the trial with an email from the Defendant dated Apri13, 2006, aduising him that Isabelle would make her First Communion at Gesu Church on Sunday, May 7a' at 2:00 p.m. (Defendant's Exhibit T).the Plaintiff told the Court that the date on the email was fake! There is nothing to establish that the date of the email is anything but genuine. The Piaintiff had to deny that it was; though, because to acknowledge that it was genuine would have ruined his carefully built-up fantasy that the Defendant deliberately kept him in the dark about the children's acdvities in order to marginalize his role in their lives. The Defendant did not deny that she refused to allow the chiidren to keep the Amigo cell phones that the Plaintiff purchased for them. She did not believe that it was appropriate for the . children of Lance and lsabelle's ages at the time to have cell phones and so advised the Plaintiff (Defendant's Exhibit I^ That is a.faz cry, however, from establishing that the Defendant cut off all of his phone contact with the children. What she did complain about, and asked him to stop, was calling the house over and over and over again in a short space of time so that he could speak to the children even though neither they nor she was at home. At one point the Defendant counted thirteen calls within thirty minutes on a Saturday and an additionat twelve the following morning (Defendant's Exhibit CC and Plaintiff's Exhibit 76), all while the family was out of the house. At another time she accused him of calling "continuously throughout the day, sometimes ten or fifteen times in a row...." {Plaintiff's Exhibit 44). While the Plaintiff admitted to having some recollection of the Defendant complaining that he was calling too much, he failed, as so often he did, to acknowledge that he had done anything wrong and instead put the onus on the Defendant for not allowing him to talk to the children early in the morning (Plaintiff's Exhibit 49). 81 DR.H733 The Plaintiff s testimony with regard to being told to stay out of the Defendant's home is likewise less than credible. According to the notes that the Defendant made prior to her divorce from the Plaintiff and which she supplied to Miss Wingler (Court's Exhibit lj, the issue of the Plaintiff entering and walking tl'rough the Defendant's home without permission and refusing to leave predates the divorce. On December 16, 2005, the Defendant's prior counsel again raised the issue in a letter to one of the Plaintiff's prior attomeys (Defendant's Exhibit F). The Plaintiff alleged that the statements in the letter were false which, he testified, led him to file ethics charges against the attorney. 're In the course of testifying, though, he admitted that at some point he knew that ti Defendant did not want him to come into her house, but also mentioned that in 2006-2007 the Defendant would cook dinner for him and that only stApped when she got involved with Mike DeLuca. Since the Defendant married Mr. DeLuca on July 13, 2007and they had been dating steadily for between two and a half to three years before then and since the Piaintiff intimated in an email that he knew the two had been cohabita6ng for some time it is simply inconceivable that the Defendant would have been inviting the Plaintiff in and cooking him dinner when, by his own admission, that stopped once the Defendant became involved with Mr• DeLuca. It is especially difficult to put any stock in the Plaintiff's testimony on this issue in view of his claim he made in the 2007 Florida complaint he filed against the Defendant, her mother and Mr. DeLuca, who he alleged had been cohabitating with the Defendant "for at least two years". If Mr. DeLuca was in the house then, by his own admission, the Plaintiff wasn't eating dinner there. There is simply no way to reconcile the Plaintiff's statements except to conclude that they were created in an effort to justify what he was doing, which was to walk into the remain there in spite of her protests. Defendant's house without invitation and The Defendant was not the only person to mention the Plaintiff walking into a house without permission. The Defendant's mo#her testified that the Plaintiff not only walked into her house an occasion without permission,.but also went upstairs and looked around. Her testimony along with Diana Crinley's , who testified to the Plaintiff walking into people's homes when she, the Plaintiff the Defendant and their children were trick or txeating lends credence to the Defendant's description of the Plaintiffls behavior. There are numerous other reasons to suspect the Plaintiff s credibility. One of those is his claim tk^at he had Diana Kiayman's perxnission to sign her name to various pleadings as well as complaints that were filed against Magistrate Mills and Judge Russo with the Ohio Disciplinary Counsel. At the time that the complaints were filed with the Ohio Disciplinary Counsel on July 20, 2008 Diana and the Plaintiff had been, by his admission, separated for two months. On August.23, 2008, in an email that was subsequently marked as Defendant's Exhibit KKK and admitted into evidence, Diana Klayman advised the Plaintiff that she was going to stay in Columbia and, more importantly, let him know in no uncertain terms that she though he had sexious mental issues and wanted nothing more to do with him. Given how strongly she expressed her views in that email it is difficult to believe that she would have ever authorized the Plaintiff to sign her name to a complaint against Magistrate Mills. and Judge Russo or to documents submitted to the Court of Appeals. It is especially difficult to 82 nx-x^ss believe that she had in view of the letters that she subsequently sent to disciplinary counsel and to Magistrate Mills and Judge Russo informing them that she had not signed her name to those complaints. Rather, she accused the Plaintiff of forging her signature (Defendant's Exhibits But it was not the Plaintiff who was at fault, it was Ms. Klayman, it was the Defendant, it N!`II^T). was Miss Jambe: it was always somebody else who was flawed or at fault, never him. In one of the more bizarre aspects of that manifestation, the Plaintiff repeatedly accused Miss Jambe of being a homosexual (Defendant's Exhibits DDD, EEE & FFF). In an email sent to Dr. Mark Lovinger who was hired by the Defendant to conduct a custody evaluation, the Plaintiff began by telling Dr. Lovinger: i just hope, that as a religious practicing Orthodox Jew, you do what is right when you write ye„r report. and then added: I have not been able to see or be with my children for two and one half years. Neither has my Dad, and my dead mother could not even see. the children before she died. From day one after our separation, Stephanie, and now Mike DeLuca, not to mention Gisela Luck, think they have a proprietary right to the children and and that my family and I should just fade away into the sunset. This not only extends to me, but my farnily's background and heritage. It is no accident that Jambe and Stephanie found my and my Dad's bracelet and necktace (which is just silver) "inappropriate" for Isabelle, who is already a young girl. The logo of MontBlanc looks like a Star of David, and they previously confiscated ones I had purchased with a cross on them. They confiscated kids cell phones, failed to allow the children to view innocent e cards, and haue tried to freeze me and my family's heritage out of their lives. Its not unlike pre-World War II Germany, not coineidentally. The anfi-semitism is rank and you should consider resigning givea your strong religious views, which puts you in a conflict of interest situation. (Emphasis added) (Defendant's EEE) How the Plaintiff could have made the leap from the Defendant allegedly cutting off all contact between his children as well as with is his father and his mother, who the Plamtiff admitted suffered from Alzheimer's and who he also admitted they had never met, to accusing the Defendant and her attorney of anti-Semitism and from that to the conclusion that Dr. Lovinger was somehow placed in a"conflict of interest" situation is.utterly incomprehensible. The issue of the silver necklace and bracelet falls into the same category since there is no record of any conversation between the parties concerning those items and no evidence that the Defendant mnch less Ms. Jambe ever commented on them. The only person who did was 83 DR-Fi733 Tsabelle, who told the Plaintiff in no uncertain terms that she didn't like the way the necklace looked. In the PlaintifPs mind, that wasn't Isabelle's opinion, she was only parroting the thoughts and word put into her head by her mother. As menfioned earlier in this discussion, the undersigned can find no reason to believe that was the case. Even more astounding, though, is the Plaintiff s claim that it was not just the Defendant who allegedly found the jewelry that was sent to Isabelle inappropriate, but it was Ms. Jambe also. It was she, in other words, who is behind Defendant's actions. She is so corrupt, so venial itz his mind that in 3une 2009 he complained that he wasn't given notice of the status conference at which ten trial dates were set even though he should have been because he was "rightfully pro-counsel" and it was indicative of the Magistrate's "bias and prejudice" because he was barred from participating in the proceeding. He went on to camplain that he ^xas not notified hy anyone of the status conference when the dates were chosen incbading by Ms. Jambe: ...who likely initiated the secretive status conference with ex purte contacts with the court Magistrate... (Defendant's Exhibit V^ In the pleading, which the Plaintiff capfioned Supplement To Motion For Disqualification Motion For Continuance, he indicated that his key witness, Louise Benson, who knew better than anyone else of the Plaintiff s interaction with his children before the Defendant alienated them would be unavailable during the dates set for trial. Although her name appeared on the Plaintiffls witness list and although by his own statement she was his key witness, the Plaintiff never caIled her to testify. The point is not the promise to produce Ms. Benson was another left unfulfilled bp the Plaintiff, but his view of Ms. Jambe. The idea that she somehow had a duty to notify him of the trial schedule when he was represented hy an attorney and after two courts had made it absoiutely clear that he was only a litigant, not co counsel is patently absurd. It was his attomey's duty to advise him of the trial schedule, not Ms. Jambe's. She represented the Defendant and so not only had no obligation to the Plaintiff, but was prohibited by the disciplinary rules from contacting him while he was represented. As a lawyer licensed to practice in three jurisdictions the Plaintiff had to know that. Ms. Jambe, however, had become a creature of such malevolence that no crime, no machination, no plot was beneath her. It is an indication of his fixation on Ms. Jambe and her power that he claimed that she had somehow organized the entire enterprise. While his assaults on everyone but the Defendant were short lived, the Plaintiff's attack on Ms. Jambe was unrelenting: Having decided for whatever reason that she is a lesbian he focused on her alleged sextrality with all of the relentlessness and fervor of a true believer. By the time that he took the witness stand the Plaintiffls fixation on and antipathy to Ms. Jambe had reached the point that in his mind she was in control of the Defendant; manipulating her like some Svengali to the point that she rvas more responsible fox interfering with his ability to see and have a relationship with his children than the Defendant. It is an interesting fantasy, but one for which there is absolutely no support anywhere in the record. 84 DR-H733 The Plaintiff's attacks on Ms. Holecek, Ms. Jambe, Magistrate Mills, 7udge Russo, Sister Linda and the Defendan# are neither a new nor an unusual tactic for the Plaintiff as evidenced by Justice Tolub's 2007 decision in the matter of Stern v. Burkle, 207 N.Y.Misc. LEXiJS 6402; 238 pro hac vice N.Y.L.J. 51. Written in-response to Mr. Klayman's application to be admitted (which the court denied) Justice Tolub concluded that: 1VIr. Klayman's record demonstrates more than an occasional Iapse in judgmen#, it evidences a total disregard for the judicial process. In support of that conclusion 3ustice Tolub listed a number of cases in which the Plaintiff was cited for misconduct similar to that which he exhibited in this matter. By way of example, Judge Tolub wrote: In 2003, Chief Justice John C. Coughenour of the United States District Court for the Western District of Washington rejected Mr. Klayman's xequest for a new trial and characterized his arguments "regarding the conduct and demeanor of this Court" as "bizarre" "Daly v. Far Eastern Shipping Co., and "beyond the far fetched." 238 F. Supp. 2d 1231, 1241 [W D. Wash 2003]. Rabertson of the United States District Court In 2001, Judge James for the Distxict of Columbia criticized Mr. Klayman and his organization for acting with "malicious glee" and for their "forked tongue response to the Court's order." Judge Robertson concluded that Mr. Klayman's "tnaneuver is not funny, and is indeed sanctionable." Judicial Watch ofFla., Inc. v. United States DOJ,159 F. Supp. 2d 763, 764 [D.D.C. 2001], MacDraw; Inc. v. CIT Group Equip. financinglnc., 994 F [In] Supp. 447, 455 [SDNY 1997J aff'd 138 F. 3d 33, 37 [2d Cir 1998). The court found that Mr. Klayman had advanced "preposterous" claims, had engaged repeatedly in "abusive and obnoxious" behavior during depositions and had accused the court of racial and political bias...(Emphasis added) Baldwin Hardware Corp. v. FrankSu Enterprise Corp., 78 F 3d 550, 555 [Fed Cir. 1996J [noting that Mr. Klayman, in his appeIlate briefs, accused the trial judge of anti-Asian bias]...(Emphasis added) In 1999, Judge Royce C. Lamberth of the United States District Court for the District of Columbia wrote that he had "grown weary of [Mr, Klayman's] use-and-abuse- ofthe discovery process. The court has already sanctioned [Mr. Klayman] for making representations in a favorable ruling, and then later contravening 85 DR-H733 those very (mis) representations." Alexander v. FBI, 186 FRD 188, 190 [D.D.C. 1999J. ... Judge Urbina sharply rebuked Mr. Klayman for "often highly inappropriate" conduct. and stated that his performance "was episod'acaIIy bl'aghted by rude and unprofessional behav4or which was directed toward the presiding judge and opposing counseL"... (Emphasis added}Material Supply Inf1, Inc v. Sunmatch Indus. Co. Ltd., No. Civ A. 94-1184, 1997 WL 243223 The MacDraw and Baidwin Hardware cases are of particular note because of the Plaintiff s claims ihat the jurists in those two matters exlubited a political or racial bias,, accusations ^u at the c^arts ^^.:nd to be totally baseless. As noted earlier in tius discussion, the Plaintiff repeatedly hurled similar accusations against Sister Linda and the Defendant regarding their alleged anti-Latin bias. This assumes that the Defendant actually said sornething to the chiidren about Diana Klayman, an assumption that the Magistrate is unwilling to make because there not only is nothing but the Plaintiff's word to support it, but also because it bears a suspicious resemblanee to the claim of prejudice that the Plaintiff leveled against Sister Linda. It is not even clear that the Defendant ever rnet Diana Klayman. The only evi.dence of what might be considered some interaction between the two women lies in an email (Defendant's Exhibit EE) in which the Defendant told the Plaintiff that she would appreciate Diana helping Isabelle get dressed for her dance recital. Other than that one document, there is no hint anywhere in the record that the Defendant ever saw Diana Klayman and so was aware. of her skin color, whatever it may be. Since the Plaintiff never testified that his children ever said anything to him about their mother's feelings concerning Diana Kiayman, it is more likely that the Plaintiff either made up the allegation as a way of attacking the Defendant or forgot that he had already accused Sister Linda of anti-Latin bias and so laid the misconduct at his ex-wife's feet. After reviewing the record the undersigned can only conclude that those allegations are either pure fantasy or deliberate slurs made up for the purpose of destroying the character of those two women. Whatever the reason might be for the Plaintiffls attacks on Sister Linda and the Defendant, the undersigned can fmd absolutely no support whatsoever for any of them. It bears repeating that the Plaintiff failed to establish that Sister Linda behaved in other than an appropriate manner toward Diana Klayman or that she evidenced any hint of bias because of the color of Diana Klayman's skin or her county of origin. As noted earlier in this discussion, the Plaintiff undercut the basis for that claim in his suit against Baker & HostetIer when he wrote that Diana Klayman ". .. is not dark skinned" (Defendant's E^chibif IIII). If she is not dark skinned then there was no reason for Sister Linda to have made a distinction on the basis of skin cotor, even if she was so inclined. Likewise, there is absolutely no truth to the Plaintiff's claim that Sister Linda co^scated the suitcases and gifts that he brought to Gesu School. He knew that she hadn't because the children had rejected them while he stood there. Further, he admitted that Sister Linda returned 86 DR-H733 the items to him at a second meeting. Like his claim of her prejudice, the Plaintiff's oft repeated allegation that Sister Linda confiscated the suitcases and gifts not only lacks any foundation in reality, but says more about the Plaintiff and his mental process than it does about Sister Linda and hers. By the same token, there is absolutely no support for the proposition that Ms. Jambe talks with the Magistrate. The allegation that she did is somehow engaged in secret or ex parte tied up in the Plaintiff's claim that the trial was scheduled at times when neither he nor his key witness, Louise Benson, would be available. In a supplemerital motion to reschedule the trial the Plaintiff s counsel aclmowledged that he failed to check with his client when the dates were chosen or notify him of the dates he, the Court and the other attorneys agreed on to resume the trial of this matter. Ms. Jambe had absolutely nothing to do with setting the trial dates other than to check her schedule. Her role was no different that that of the Guardian or the Plaintiff's counsel. Yet, even though the Plaintiff probably lcnew at that point that the fault lay with his own counsel, he blamed Ms. Jambe. Even if he was not aware that his attorney had failed to notify him of the trial dates by then, there is absolutely no reason for him to have assumed that Ms. Jambe and the Court had secretly manipulated the trial schedule in order to defeat him. That he would harbor such thoughts much less broadcast them again says more about the Plaintiff's personality and mental state than it does Ms. Jambe's. For those and the other reasons already mentioned in this decision, the Magistrate fmds that the PlaintifPs testimony i^ entitled to no weight. He is simply not credible. If anything, the record reveals that he deliberately misstated facts, misinterpreted emails and conversations and made allegations about the Defendant, her husband, her mother and Ms. Jambe that were utterly without foundation. The Magistrate fmds from the timing of the accusations that the Plaintiff leveled against Mr. DeLuca and the total lack of any evidence to support them that the Plaintiff made tliem with the intention of interfering with the Defendant's wedding. The unrelenting attack that he launched against the Defendant was made for another purpose; to paint her in the worst possible light while at the same time projecting himself as an innocent victim of a cazefully orchestrated plot to destroy his relationship with his children. As discussed in the preceding sections of this deoision, the effort to demonsttate that the Defendant was a"bad mother" failed miserably. - The core of the PlaintifP s argument with regard to the Defendant's plot to destroy his relationship with the children is that she falsely accused him of sexual abuse and along with Ms. Jambe continued to perpetuate the claim in spite of oyerwhelming evidence of his innocence. The Magistrate finds no such evidence. Instead, the Magistrate fmds that the Plaintiff deliberately manipulated the process in order to avoid answering questions about his behavior. As noted earlier in this discussion, the Plaintiff was never interviewed by Ms. Wingler. Her records (Court's Exhibit 1) reveal that she repeatedly attempted to speak with the Plaintiff, only to be put off by one excuse after another. He also, by his own testimony, never said a word during the appeal process even though he was present. 87 DR-FI7i3 The Defendant and her counsel were not part of that procedure so the individual who conducted the review was denied their input. That individual didn't testify so there is no way to know what factors she considered or what weight she gave to them in reaching her decision The assistant prosecuting attorney also didn't testify, so again the Court was denied the opportunity to determine what lead him to the conclusion that he came to. The only thing that the Magistrate knows fox certain is that the Plaintiff did not speak with the detective who investigated the abuse allegation involving Lance. Firially, there are the results of the polygraph, which the Magistrate finds, for the reasons already discussed, are not entitled to any weight. And as noted earlier in this discussion the Plaintiff chose to invoke his Fifth Amendment privilege against self-incrimination during his deposition (rather than answer whether he had ever touched Lance's private parts while the child was in the bath or •.vhen he was in bed or if he ever showered with *1:e children or slep*_ naked with them or whether the children protested that he kissed them too much. He also raised the same defense when he was asked to define what constituted inappropriate touching. These were simple questions; ones that the Plaintiff should have had no difficulty answering, especially since he had "passed" the polygraph months earliex and also because he maintained that the allegation that he touched Lance's private parts was made up by the Defendant. The Plaintiff, however, refused to take advantage of the oppor[unity to declare under oath that he had never engaged in any of the behaviors that he was questioned about. He had no problem declaring a number of times during the course of this proceeding that the Defendant and her counsel at the time of the divorce had tried to smear him. The statement is an apparent reference to the entries in the "diary" that the Defendant kept leading up to the time of the first divorce. The Plaintiff's however, was careful not to speak to those allegations or to speak to Ms. Wingler, to the detective who investigated this matter or to the CCDCFS supervisor who conducted the review of the indicated finding or speak under oath while he was being deposed concerning the specific allegation that he had touched Lance's private parts. Even more disturbing, the Plaintiff refused to even speak to what he considered inappropriate touching. The Magistrate finds under the circumstances that it is reasonable to draw an adverse inference from the Plaintiffls decision to"take the Fifth Amendment". . The Plaintiff's stiategy of silence must be measured against Lance's disclosure and subsequent behavior when questioned about the Plaintiff as well as the Defendant's actions. The Plaintiff sees no need for any such inquiry because for him there is a perfect correlation between Magistrate Mill's declaration that the Plaintiff had a right to visit with the children and Lance's disclosure. The Plaintiff left no doubt that in his mind, at least, there was no disclosure. The Defendant made up the story as soon as Magistrate Mills told her that she had to allow the Plaintiff access to the children. The undersigned finds the Plaintiff's argument unpersuasive. What is missing from the Plaintiff's timetable, but what cannot be overlooked is the incident at Gesu School on September 10, 2007 when the Plaintiff tried to give a suitcase full of gifts to both Isabelle and Lance. Sister Linda had to cajole Lance to leave class to see his father with the promise that she would not Ieave him alone with the Plaintif£ By the time of the meeting Lance may not have spoken to his father since he thxew the phone across the room on 88 DR-AT33 July 4^` because the Plaintiff was attempting to convince him that the diving board accident was his mother's fault and that she did not care about him. Tf Lance wasn't happy about that conversation, the confrontation between Sister Linda and the Flaintiff further upset him. He had no problem expressing those feelings to Ms. Wingler or Detective Bonnette (Court's Exhibit 1 and Defendant's Exhibit 00). It was against that backdrop that Lance, according to the Defendant's testimony, told her the next day that he did not want to talk to the Plaintiff and wished that he was not part of the family. It was only after he made that statement that he told the Defendant that the Plaintiff had "played with my privates in the bath". The Defendant further testified that Lance was angry while he talked to her and that he crumpled up his pillow, pulled his legs up and was moving his hands a lot. Although tlaese were not the exact same behaviors that Ms. Wingler, Dr. Joyce or Detective Boxmette witnessed, all t.hree reported that Lance was ill at ease discussing the matter and that he was upset with his father who he declared was mean and hurt people. Before those individuals ever became involved the Defendant called two of her friends to tell them what Lance had disclosed to her as well as her attomey and the child's pediatrician. She did not call the police or, like the Plaintiff, 696-KIDS. For all of the foregoing reason including the description of Lance's behavior when he was questioned, the negative inference drawn from the Plaintiffls decision to refuse to answer questions regarding whether he had ever engaged in inappropriate behavior with the children or even to define the term, his repeated demonstrated lack of boundaries coupled with his failure to acknowledge that he has ever engaged in any inappropriate behavior lead the Magistrate to fmd that the Defendant neither fabricated the allegation that the Plaintiff touched Lance's priyate parts or induced him to say the words. Rather, the Magistrate finds that Lance uttered the words without any prompting from the Defendant. For all of the same reasons as well as all of the others discussed in this decision, especially the PlaintifP s utter lack of credibility, the Magistrate finds that the Defendatit's Motion to Modify Divorce Decree, Motion No. 249314, (denominated as her Mofion to Modify Existing Order of Court) should be granted. The Magistrate further finds that pending further order of Court the Plaintiff shall have supervised parenting time with the minor children every other weekend, except when the children are out of the town for vacation, from Saturday at 10:00 a.m. to 7:00 p.m. and on Sunday from 10:00 a.m: to 7:00 p.m. with a supervisor ta be selected by the Defendant and paid for hy the Plaintiff. In addition, the Plaintiff shall have supervised visitation with the children from 10:00 a.m. to 7:00 p.m.on the holidays specified in the parties' Virginia divorce decree. states: In regard to the issue of attorney fees Section 3105.73 (B) O.R.C. In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation or annulment of marriage or an appeal of that motion or proceeding, that court may award all or part of reasonable attomey fees and litigation expenses to either parry if the court finds the award equitabie. In determining whether an award is equitable, the court may consider 89 DR-H733 the parties' income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties' assets. In determining the amount of reasonable attorney fees in this case the timdersigned considered whether all of the legal services rendered were necessary and whether under the facts of this case the amount of time expended on those services was fully compensable. The Magistrate also considered all of the factors set forth in Local Ruie 21 as well as those established in Swanson v. Swanson (1976), 48 Ohio App. 2d 85, 89-90. The Magistrafe finds that while the issues presented, i.e. the modification of pazental rights and responsibilities and modification of parenting time, are commonplace in this Court; tl^^e Plaintiff's actions made tJris matter anything but routine and straightforward. He not only filed numerous rriotions in tlus Court, but also battled the release of his financial records here as well as in Alabatna and Florida. In addition, he filed a petition for a writ of mandamus and four interlocutory appeals in the Eighth Appellate District Court of Appeals as well as an action in the Federal District Court and one in Miami, Florlda against the Defendant and her counsel. He also repeatedly interfered with the DefendanPs legitimate discovery requests to the point that the Court of Appeals noted in one decision that: Appellant obstructed reasonable discovery requests by filing countless motions to quash and by failing to produce documents. The Plaintiff also refused to accept and adhexe to the decisions of this Court and the Court of Appeals regarding his status. His actions required that the Defendant's counsel spend considerable time fighting on multiple fronts before this matter even came #o trial in June 2009. The ensuing fifteen days of hearing requited considerable time and effort. The result was that the Defendant ran up an enoxmous legal bill, which obviously caused the Plaintiff no concem because during one of the depositions he asked the Defendant's mother, who the Plaintiff indicated was the engine of the case, if she wanted to settle the case or go through years of litigation and spend hundreds of thousands:of dollars. While he didn't deny that he made the statement, the Plaintiffprotested that it was taken out of context. The Magistrate finds that the Plaintiff's protestations of innocence aside, he was very well aware of exactly what he was doing and deliberately embarked on a course of action designed to use the legal process to punish the Defendant, her husband and her mother. The Magistrate further fmds that the Defendant's counsel, Suzanne Jambe, is a partner at Baker & Hostetler where her practice is almost exclusively sn' the area of domestic relations. She further stated that at present her hourly rate is $ 395.00 per hour, up from $ 340.00 per hour when she stared representing the Defendant in 2007. She went on to say that this is the most atypical domestic relations case that she has ever been involved in. She also testified to some of the work that was required because of the Plaintiff s actions. In support of that testimony she submitted copies of the pleadings from the actions filed in the Court of Appeals as well as the through I Florida action, all of which the undersigned has reviewed (Defendant's Exhibits CCCC 90 DR-H733 I I 1). Except for the Florida action against the Defendant and her counsel, which was still pending when the trial in this matter concluded, none of the Plaintiff's other actions were successful. All, however, required that the defendant incur fees and costs to contest them. The Defendant did not submit any evidence in support of her Motion To Show Cause, Motion No. 260457, which was filed for the Plaintiff's alleged failure to comply with the expert witness nor did she press the issue of sanctions. Ms. Jambe did, however, testify to the sums that the defendant was billed (Defendant's Exhibits V V V through BBBB), which establish that through November 16, 2009 the Defendant was charged $ 464,041.25 in fees and an additional $ 17,207.78 for expenses for a total of $ 481,249.03- That sum does not include any fees and expenses incurred from November 17a' through the end of trial. The undersigned has reviewed the bilis, which include charges for ±^^^e other attorneys who assisted Ms. 7ambe in this matter as well as for a paralegal and finds that attomey fees in the amount of $ 325,OOOAO are reasonable and necessary and that the amount of time expended on such services was fully compensable THE MAGISTRATE'S DECISION IS TO ORDER: Petitioner(PlaintifPs Motion For Aliocation of Parental Rights & Responsibilifies, Motion No. 246178, and Petitioner/Plaintif£s Motion to Show Cause, Motion No. 247721, are dismissed with prejudice. RespondentlDefendant's Motion to ModifyDivorce Decree, Motion No. 249314, is granted. Pending further order of Court the PetitionerlPlaintiff shall have supervised parenting time with the minor children every other weekend, except when the children are out of the town for vacation, from Saturday at 10:00 a.m: to 7:00 p.m. and on Sunday from 10:00 a.m. to 7:00 p.m. with a supervisor to be selected by the Respondent(Defendant and paid for by the Petitioner/Plaintiff. In addition, the Petitioner/Plaintiff shall have supervised visitation with the children from 10:00 a.m. to 7:00 p.m.on the holidays specified in the parties' Virginia divorce decree The Petitioner/Plaintiff shall not move this Court to modify the supervised parenting time and the Court shall not consider a motion to modify supervised parenting time or modify the supervised parenting time schedule set forth in the preceeding paragraph until the Petitioner/Plaintiff submits to a full psychiatric or psychological evaluation to be conducted by a psychiatrist or psychologist in the Greater Cleveland area acceptable to the Respondent/Defendant. The PetitionerlPlaintiff shall sign releases for the individual conducting the evaluation to have fu11 access to any and all medical and/or psychological records and/or records of any counselor with whom the Petitioner/Plaintiff has consulted for any reason and for any other records that the person conducting the avaluation may deem necessary in order to compete the evaluation. The Respondent/Defendant shall have full access to the person conducting the evaluation and may provide the evaiuator with whaterver documents she belieVes the person conducting the evaluation may need in order to complete his/her evaluation. The cost of the evaluation shall be borne by the Petitioner/Plaintiff. Petitioner/Plaintiffls Motion for Attomey Fees, MotionNo. 246180, is denied. Respondent/Defendant's Motion for Sanctions, MotionNo. 253121, is denied. 91 DR-n7i3 Respondent/Defendant's Motion to Show cause, Motion No. 260457, is denied- Respondent/Defendant's Motions for Attorney Fees, Motion No. 288236, Motion No. 290239, Motion No. 253120, and the mofion she filed for Attorney Fees at the same time that she filed her Motion to Modify Decree are granted. The Respondent/Defendant is hereby awarded attorney fees in the anmout of $ 325,000.00 for which judgement is rendered and execution shall issue. Costs adjudged against Petitionar. -----^ ^ MAGIS T RA 1'E LA VJRENCE R. LOEB Counsel and parties will take notice that under the provisions of Rules 75 and 53 of the Ohio Rules of C'ivil Procedure, this matter will be held fourteen (14).days from the date on which this decision is filed. If no objections to this decision are filed prior to said date, the preceding decision will be adopted by the Court, subject ta Civil Rule 53(D)(4)(c). A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S ADOPTION OF ANY FINDING OF FACT OR CONCLUSION OF LAW IN THIS MAGISTRATE'S DECISION UNLESS THE PARTY TIMELY AND SPECIFICALLY OBJECTS TO THE FINDING OR CONCLUSION AS REQUIRED BY CIVIL RULE 53(D)(3)(b). CERTIFICATE OF SERVICE Copies of the foregoing Magistrate's Decision were mailed by the Clerk of Courts by ordinary LT.S. mail to the following parties or their counsel of record: JENNIFER L. MALENSEK, GUARDIAN AD Lii'EM 1220 WEST 6TH STREET SUITE 502 CLEVELAND, OH 44113-0000 WILLIAM WHITAKER, ATTORNEY FOR PLAINTIFF 190 NORTH UNION STREET SUITE 30 AKRON, OHIO 443(}4 SUZANNE M. JAMBE, ATTORNEY FOR Respondent 3200 NATIONAL CITY CENTER 1900 EAST 9TH STREET CLEVELAND, OH 44114-3485 . 92 DR-H733 ' ' ^ LARR.Y EI,LIOT KLAYMAN, Petitioner 203 MASSACHiTSETTS AVENUE NE SUITE 2 C WASHINGTON, DC 20002-0000 Copies were mailed by the Clerk of Court on DEPUTY CLERK Gi^ COUiZT 93 DR-H733 Appendix 4 ^ es ^ COURT OF COMMON PLEAS DIVISION OF DOMESTIC RELATIONS CUYAHOGA COUNTY, OHIO Case No: DR07 316840 LARRY ELLIOT KLAYMAN Judge: DIANE M. PALOS Petitioner ^^C7 ^^o ^W - vs. - ;^^ ^ i^ JUDGMENT ENTRY •= c STEPHANIE ANN LUCK = ^^ ^ Respondent ^_ •r,_ .ar This matter came on for hearing on June 23, 2010, before Magistrate Serpil Ergun upon ,^ Respondent's Motion To Show Cause For Continued Non-Payment of Child Support (#289099) j^^^ and Motion For Attomey Fees (#289100) filed October 15, 2009; Petitioner's Motion To ^^^ Withdraw Capias (#291722) filed December 8, 2009; and the Guardian Ad Litem's Motion For ^^$ (#292173) filed December 10, 2009. Present were Attorney William ^^^ Guardian Ad Litem Fees '^ N Whitaker on behalf of the Petitioner, Respondent, and Attomey Suzanne Jambe on behalf of the Respondent. Petitioner and the Guazdian Ad Litem Jennifer Malensyk failed to appear. ^ July 2, 2010, in its entirety. i The Court adopts the Magistrate's Decision filed ^-- -- IT IS HEREBY ORDERED: AFTER CONSIDERING THE MAGISTRATE'S DECISION FILED JULY 2, 2010, PLEADINGS, EXHIBITS AND IN THE ABSENCE OF A TRANSCRIPT, PETITIONER'S OBJECTIONS FILED JULY 16, 2010 ARE HEREBY OVERRULED AND THE DECISION OF THE MAGISTRATE ADOPTED WITHOUT MODIFICATION. Petitioner's Motion To Withdraw Capias (#291722) filed December 8, 2009 is DISMISSED without prejudice. The Guazdian Ad Litem's Motion For Guazdian Ad Litem Fees (#292173} filed December 10, 2009 is DISMISSED without prejudice. Respondent's Motion To Show Cause For Continued Non-Payment of Child Support (#289099) filed October 15, 2009 is GRANTED. Petitioner/Obligor Larry Klayman is in contempt of Court for failing to comply with this Court's support order journalized September 24, 2009, as well as the divorce decree registered in this Court by order journalized August 28, 2007. Petitioner is in arrears in the amount of $47,600.90 as of May 31, 2010, which is owed the Respondent/0bligee Stephanie DeLuca f!k/a Stephanie Klayman, Respondent's assignee(s), and the Child Support Enforcement Agency (CSEA). This sum includes all previously accrued support arrears and processing chazges, and supercedes all prior determinations. Petitioner also owes Respondent $5,950.00 for tuition expended for the children for the 2009-2010 and 2010- 2011 school years. This is Petitioner's second offense in this Court for nonpayment of support. Petitioner is hereby sentenced for said contempt to sixty (60) days in jail. However, PROVIDED the Petitioner's sentence wi11 be suspended and the contempt will be purged 30 days of the journalization of that Petitioner pays $10,000.00 through the CSEA within this order. This purge payment is in addition to any obligation to pay current support and arrearage payments that may be due. (OCSPC), All support shall be paid through Ohio Child Support Payment Central Ohio 43218-2372. Any payments not made through OCSPC P.O. Box 182372, Columbus, shall not be considered as payment of support. Checks or money orders shall be made payable to "OCSPC". Cash payments to OCSPC may be made at the Cuyahoga County Treasurec's Office, Building, Is^ Floor - Cashier, 1219 Ontario Street, Cleveland, Ohio County Administration Security Number, 44113. All payments shall include the following: Obligor's name, Social SETS case number, and Domes6c Relations Court case number. Itt the event Petitioner does not purge the contempt, the Court, upon the f►ling of an an attached certified copy affidavit of the Respondent Stephanie DeLuca or the CSEA with Larry Klayman to of CSEA/OCSPC payment records, shall issue a capias for Petitioner the jail sentence ordered above. Said aftidavit shatl be filed within one (1) year of the serve journalization of this order. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in addition to the above sentence and civil purge, Petitioner shall do the following: I) Continue to pay $1,836.00 per month, which includes 2% processing chazge, as current support for the minor children Isabelle Natalie Klayman (DOB 12l15/1997) and Lance William Ktayman (DOB 11-14-1999} ($900.00 per month per chitd not including 2% processing chazge); . 2) Pay an additional $360.00 per month toward the arrearage until the arrearage is paid in full or until further order of Court. Processing charges shall not be collected on the arrearage payment since the above arreazage includes all accrued processing charges. Totat monthly obligation is $2,196.00. All support under this order shall be withheld or deducted from the income or assets of the obligor pursuant to a withholding or deduction notice or appropriate order issued in H865 TP.DOC (SY2006) accordance with Chapters 3119., 3121., 3123., and 3125. of the Revised Code or a withdrawal directive issued pursuant to sections 3123.24 to 312338 of the Revised Code and shall be forwarded. The prior order to post bond dated September 24, 2009 shall remain in full force and effect. IT IS FURTIIER ORDERED, ADNDGED AND DECREED that the Obligor immediately nodfy the CSEA, in writing, of any change in employment (including self- employment), receipt of additiona[ income/monies or termination of benefits. The Obligor shall include a description of the natwe of the employment and the name, business address and telephone number of any employer. The Obligor shall immediately notify the CSEA of any change in the status of an account from which support is being deducted or the opening of a new account with any financial institution. IT IS FURTHER ORDERED, ADJIJDGED AND DECREED that the Child Support Obligor and the Child Support Obligee shall comply with the request of the CSEA in advance of an administrative review of a support order to provide the following: copy of federal income tax return from the grevious yeaz, copy of all pay stubs within the preceding six (b) months, copy of all other records evidencing the receipt of any other saiary, wages or compensation within the preceding six (b) months, and, if the Obligor is a member of the uniformed services and on active military duty, a copy of the Obligor's Internal Revenue Service Form W-2, "Wage and Tax Statement," and a copy of a statement detailing the Obligor's eamings and leave with the uniformed services. The Child Support Obligor and the Child Support Obligee shall also ist of auailable group health insurance and health caze policies, contracts and plans, provide a and their costs,► the current health insurance or health caze policy, contract, or plan under which the Obligee and/or Obligor is/are enrolled, and their costs, including any Tricare program offered by the United States Department of Defense available to the Obligee, and any other information necessary to properly review the child support order. Either party's failure to provide any eamings/benefits information pursuant to this order, or failure to comply with the foregoing order of notification shall be considered contempt of Court, punishable by a fine and/or jail sentence. IT IS FUR1'HER ORDERED, ADJUDGED AND DECREED that the residential parent and legal custodian of the child(ren) immediately shall notify, and the obligor under a child support arder may notify, the CSEA of any reason for which the child support order should tenninate, including but not limited to the child's death, marriage, emancipation (age 18 or high school completion/termination), enlistment in the Armed 5ervices, deportation, or change of legal custody. A willful failure to notify the CSEA is contempt of court. of the CSEA in accordance with The following information is provided for the use §3121.24 and §3121.30 of the Ohio Revised Code: H8fi5 TP.DOC (S/2006) OBLIGEE: NAME: Stephanie Ann Luck RES[DENCE ADDRESS: 2598 Kerwick Road Cleveland, Oh 44118-0000 MA[LING ADDRESS: 2598 Kerwick Road Cleveland, Oh 44118-0000 SOCIAL SECURITY NO.: DATE OF BIRTH: 11/30/1966 DRIVERS LICENSE NO.: Lany Elliot Klayman OBLIGOR: NAME: RESIDENCE ADDRESS: P.O. Box 2788 Washington, Dc 20013-0000 MAILING ADDRESS: P.O. Box 2788 Washington, Dc 20013-0000 SOCIAL SECURITY NO.: DATE OF BIRTH: 07/20/1951 DRIVERS LICENSE NO.: party held in contempt. Attorney fees and court costs may be assessed against the The parties affected by the support order shall inform the CSEA of any change of name or other change of conditions that may affect the administration of the order. Willful failure to inform the CSEA of the above information and any changes is contempt of court. EACH PARTY TO THIS SUPPORT ORDER MUST NOTIFY THE CHILD SUPPORT ENFORCEMENT AGENCY IN WRTTING OF HIS OR HER CURRENT MAILING ADDRESS, CURRENT RESIDENCE ADDRESS, CURRENT RESIDENCE TELEPHONE NUMBER, CURRENT DRIVER'S LICENSE NUMBER, AND OF ANY CHANGES IN THAT INFORMATION. EACH PARTY MUST NOTIFY THE AGENCY OF ALL CHANGES UNTIL FURTHER NOTICE FROM THE COURT OR AGENCY, WEIICHEVER ISSUED THE SUPPORT ORDER. IF YOU ARE THE OBLIGOR UNDER A CHILD SUPPORT ORDER AND YOU FAIL TO MAKE '1'HE REQUIRED NOTIFICATIONS, YOU MAY BE FINED UP TO $50 FOR A FIRST OFFENSE, $100 FOR A SECOND OFFENSE, AND $500 FOR EACH SUBSEQUENT OFFENSE. IF YOU ARE AN OBLIGOR OR OBLIGEE UNDER ANY SUPPORT ORDER ISSUED BY A COURT AND YOU WILLFULLY FAIL TO GIVE THE REQUIRED NOTICES, YOU MAY BE FOUND IN CONTEMPT OF COURT AND BE SUB3ECTED TO FINES UP TO $1,000 AND IMPRISONMENT FOR NOT MORE THAN 90 DAYS. IF YOU ARE AN OBLIGOR AND YOU FAIL TO GIVE THE REQUIRED NOTICES, YOU MAY NOT RECEIVE NOTICE OF THE FOLLOWING ENFORCEMENT ACTIONS AGAINST YOU: IMPOSITION OF LIENS AGAINST YOUR PROPERTY; LOSS OF YOUR PROFESSIONAL OR OCCUPATIONAL LICENSE, DRIVER'S LICENSE, OR RECREATIONAL LICENSE; WITHHOLDING FROM YOUR INCOME; ACCESS RESTRICTION AND DEDUCTION FROM YOUR H865 TP.DOC (8/2006) ACCOUNTS IN FINANCIAL INSTITUTIONS; AND ANY OTHER ACTION pERMiTTED BY LAW TO OBTAIN MONEY FROM YOU TO SATISFY YOUR SUPPORT OBLIGATION. Failure to comply with this support order can result in a contempt action; and, as provided in Ohio Rev'^dSadsC^odail2and/or0 fine of n tl more than $250 OOefonr arfirst offense, not more than thirty (30) y j more than sixty (60) days in jail and/or fine of not more than $500.00 for a second offense, and not rnore than ninety (90} days in jail andlor not more than $1,000.00 fine for a third. or subsequentoffense. All orders not modified herein shall remain in full force and effect. Respondent's Motion For Attorney Fees (#289100) filed October 15, 2009 is Ru al support for whichhjudgment^is00 ndered and ex eution may is ueorney fees as additional spo Petitioner shall pay al] costs of this action. Costs adjudged as provided in the above entry. ^ __ .1^.^. ^^ GE DIANE M. PALOS pap RECEiVED FOR FlLING cc: Roger L. Kleinman, Esq. JUN 2 4 2011 Attomey for Petitioner GE E. EPST, CLEAK DEP. BY Suzaime M. Jambe, Esq. Attomey for Respondent Jennifer L. Malensek, Esq. Guardian ad Litem N865 TP.DOC (8R006j COURT OF COMMON PLEAS DTVISION OF DOMESTIC ZiELATIONS ^ ^ ^ ^ ^ CUYAHOGA COUNTY, OHIO zo^o ^uu - z a$^ s i LAItRY ELLZOT KLAXMAN . Case No: DR07 316840 ^^;, ^^ ^ ^ ^^; Pefitioner . CLEi^!i Oi"r v+ C^ir^ v.;:`t i J Judge: DIANE M. PY^,^,O^ `''' ", C`=! `^^ :`' -vs- STEPHANIE ANN LUCK . AMENDED MAGISTI2ATE'S DECISION Itespondent This matter came on for hearing on June 23, 2010, before Magistrate Serpil Ergun upon Respondent's Motion To Show Cause For Continued Non-Payment of Child Support (#289099) and Motion For Attorney Fees (#289100) filed October 15, 2009; Petitioner's Motion To Withdraw Capias (#291722) filed December 8, 2009; and the Guardian Ad Litem's Motion For Guardian Ad Litem Fees (#292173) filed December 10, 2009. Present were Attorney William Whitakex on behalf of the Petitioner, Respondent, and Attomey Suzanne Jambe on behalf of the Respondent. Petitioner and the Guardian Ad-Litem Jennifer Malensyk failed to appear. THE MAGISTI2ATE MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: This Decision is being amended to correct a clerical error in that the Decision Eiled June 30, 2010, at page 5, left blank the purge amount. Notice containing the date and time of this proceeding was mailed to counsel of record or, if unrepresented, to the parties themselves; and the fact of such mailing was joumalized in the Domestic Relations Hearing Journal maintained by the Clerk of Courts and is evidenced by a notation on the Docket. Petitioner's and the Guardian Ad Litem's motions were not served as required by the Ohio Rules of Civil Procedure. The Petitioner was personally served with the Respondent's motions and appropriate notices by special process server appointed by the Court, on November 9, 2009. Petitioner was ordered on October 23, 2009 to appear to answer the allegations. The parties present agreed to submit this matter for decision based on the stipulations and supporting documentation attached as Joint Exhibit 1, and the testimony of the Respondent's attomey on the issue of attorney fees. No other evidence was submitted. The matter before the Court involves non-payment of support. Respondent seeks a contempt fmding against Petitioner and attomey fees for failing to pay child support and tuition for the minor children. : The parties have two children, lsabelle Natalie Klayman (DOB 12/15/1997) and Lance William Klayman (DOB 11-14-1994) and were divorced in Fairfax, Virginia on or about June 11, 2003. Based upon a written agreement of the parties, the Virginia Circuit Court awarded Respondent mother legal and physical custody of the children, subject to the Petitioner father's visitation rights. Petitioner was ordered to pay $1,800.00 per month as child support for the children and reasonable tuition expenses for private elementary and secondary education for each child, not to exceed $5,000.00 per academic year per child. On 7uly 5, 2007, the Petitioner fled to register the Virginia order as a foreign decree, and motions to modify parental rights and responsibilities and child support. The Petition to Register was granted August 28, 2007 pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which governs custody jurisdiction and the Uniform Interstate Family Support Act (ITIFSA) which governs support. The motion to modify support was voluntarily dismissed by the Petitioner on April 22 2008. The parenting motion is the subject, among other things, of a Magistrate's Decision filed June 9, 2010. The Court takes notice of the findings set forth in the Magistrate's Decision. Respondent filed motions to enforce the support order in 2008. This Court held Petitioner in contempt for failure to pay court-ordered child support and tuition on September 24, 2009. Petitioner was sentenced to 30 days in jail, or 200 hours of cornmunity service in lieu of jail, and was given the opportunity to purge his contempt by paying $3,200.00 toward the arrearage within 30 days of journalization of the order. The arrearage was $31,393.00 as of July 20, 2009, and included tuition for the 2007-2008 and 2008-2009 school years, and attorney fees as well as past due child support. Petitioner was ordered to continue paying current support of $1,836.00 per month (including Z% proaessing charge) and $360.00 per month toward the ar;earage through the Cuyahoga Support Enforcement Agency. Petitioner did not pursue the appeal he took of the order resulting in its dismissal. A capias was issued on March 16, 2010, based upon the Respondent's affidavit, to take the Petitioner into custody for failing to pay the purge payment that was due on or about October 24, 2009 to avoid imposition of the sentence. The parties, through counsel, haue stipulated that the arrearage is $47,600.90 as of May 31, 2010. This is a cumulatiue arrearage that includes the previous arrearage as well as the child support and processing charge arrearage that accrued from July 20, 2009 through May 31, 2010. During those months Petitioner made only two payments through the CSEA, on April 19, 2010 and 1Vlay 20, 2010. These tota12,794.70. The parties also stipulated that Respondent paid $5,950.00 for the 2004-2010 school year and $370.00 for the 2010-2011 school year in tuition for the children to attend Gesu. Petitioner has not raised inability to comply as a defense to the acknowledged non- payment of support and tuition. His only defense is that the Respondent has denied him parenting tirne, that is, he withheld child support because Respondent withheld access to the children. Under Ohio law denial of visitation is not a defense to non-payment of support. Ohio Revised Code §3109.05(D). 2 DR-H773 Petitioner's defense is this: under UIFSA law and under the specific terms of the marital settlement agreement incorporated into the divorce decree, Virgirria procedural and substantive law applies to this contempt proceeding, and under Virginia law denial of visitation is a valid defense. Petitioner filed a brief the day of hearing explaining why he withheld support payments. Impficit in this argument is the admission that non-payment was a voluntary act. The Magistrate notes that the recent proceedings before Magistrate Lawrence Loeb inyolved allegations of interference with Peritioner's parenting time. The parties and counsel present at hearing acknowledged that if Petitianer is not successful in this legal argument he is in contempt of court. Respondent was given leave to submit a responsive brief, which she filed two days later. The parties' marriage settlement agreement says "the validity, enforceability and interpretation of this Agreement shall be determined and governed. by the laws of the State of Virginia." Petitioner raised choice of law before, in the recent litigation. The Magistrate declined to accept that Virginia law controlled because Petitioner's decision to regis#er the order in Ohio invested the court with jurisdiction to apply Ohio law. The Magistrate also found that Virginia law does not, indeed, permit one to evade a child support obligation hecause he was not afforded parenting time. As Petitioner acknowledges at page 4 of his brief, iJIF'SA applies. LTnder LIIFSA law, the registration of a foreign decree, here the Virginia divorce decree, renders it enforceable under the same provisions and procedures as if it were an order issued by an Ohio court. Ohio Revised Code §3115.40. The responding court is to apply its own procedural and substantive law. Ohio Revised Code §3115.14. Thexe are two exceptions when the registering forum must apply the law of the issuing state: when there are issues concerning the "nature, extent, amount, and duration" of the current obligation and the payment of arrearages, and when there is a difference between the forums as to the statutes of limitation for collecting arrearages in which case the longer period should apply. See Baldwin's Ohio Practice, Sowald & Morganstern Domestic Relations Law, §23:37 Interstate & Foreign Support Practice. This Magistrate likewise finds that, in this support enforcement action, Petitioner's decision to initiate this case and register the support order in Ohio invested this court with the ability to apply its own procedural and substantive law to enforce tha Virginia support order as if it were its own order. The exceptions for applying the law of the foreign state do not apply here since there are no issues regarding the nature, extent, amount, and duration of the obligation or statute of limitations. Nor does the language in the Marital Settlement Agreement supercede the application of Ohio law since neither the `^alidity, enforceability and interpretation" of the Agreement is at issue. The only issue before this Court presently is enforcement. The Magistrate also finds that, even if Virginia law did apply, Virginia law does not condition support payments upon receiving parenting time. 3 DR-H733 The Petitioner's defense having failed, Petitioner is found in contempt of this Court's orders for failing to pay support. Petitioner, having been found in contempt for nonpayment of support once previously per the September 24, 2009 j oumal entry, shall be sentenced to a term of incarceration for a second offense pursuant to §2705.05 of the Ohio Revised Code. The Obligor shall be permitted an opportunity to purge the contempt by paying an amount toward the arrearage within a Iimited period of time. Petitioner has no known attachable income source. ATTORNEY FEE5 Sections 3105.21 and 3104.05(C) of the Ohio Revised Code authorize the Court to assess all court costs and award attorney fees that arise in relation to a contempt finding for failure to pay child support. Section 3105.73 of the Code also authorizes an award of attorney fees. Respondent's attorney testified that she has been licensed since 1993 and her practice since 1995 has been 90% in the area of domestic relations in Cuyahoga County and surrounding counties. Her hour rate is $420.00, but she charged $395.00 an hour in this litigation. The fees for her law firm, which include another partner's time and a paralegal's time, are $4,320.66 as of the time this hearing commenced. Petitioner decIined to cross-examine Respondent's attorney. In determining the amount of reasonable attorney fees in this case the undersigned considered whether all of the legal services rendered were necessary and whether under the facts of this case the amount of time expended on those services was fully cornpensable. The Magistrate considered the factors set farth in Local Rule 21 as well as those established in Swanson v. Swanson (1976), 48 Ohio App. 2d 85, 89-90 to the extent they were ascertainable. The Magistrate fmds that the main issue presented, compliance rvith the support order, was exceedingly routine, and the fact that the Petitioner chose not to attend the hearing, entered into stipulations which significantly narrowed the issues, and chose not to present a defense other than asserting a legal argument, greatly simplified the case. One pretrial was held in this matter. However, the choice of law issues as the Petitioner raised, which were ultimately not successful, are atypical and the Respondent, no doubt, incurred additional legal fees to supplemenf her brief on that issue for this proceeding, even though the precise time spent is not known and is not part of this fee bill. The Magistrate finds that an award in the amount of $2,500.00 is reasonable and appropriate under the circumstances. MOTION TO WITHDRAW CAPIAS Petitioner presented no evidence relative to this motion. It should be dismissed for failure to prosecute without prejudice. GUARBIAN AA LITEM FEES 4 DR-H733 The Guardian Ad Litem did not attend the hearing and therefore presented no evidence in support of the motion. The motion should be dismissed for failure to prosecute without prejudice. THE MAGISTRATE'S DECISION IS TO ORDER: Petitioner's Motion To Withdraw Capias (#291722} filed December 8, 2009 is DISMISSED without prejudice. The Guardian Ad Litem's Motion For Guardian Ad Litem Fees (#292173} filed December 10, 2009 is DISMISSED without prejudice. Respondent's Motion To Show Cause For Continued Non-Payment of Child Support (#289099) filed October 15, 2009 is GRANTED. Petitioner/Obligor Larry Klayman is in contempt of Court for failing to comply with this Court's support order journalized 5eptember 24, 2009, as well as the divorce decree registered in this Court by order journalized August 28, 2007. Petitioner is in arrears in the amount of $47,600.90 as of May 31, 2010; which is owed the Respondent/Obligee Stephanie DeLuca f!k/a Stephanie Klayman, Respondent's assignee(s), and the Child Support Enforcement Agency (CSEA). This sum includes all previously accnxed support arrears and processing charges, and supercedes aIl prior determinations. Petitioner also owes Respondent $5,950.00 for tuition expended for the children for the 2009-2010 and 2010- 2011 school yeazs. This is Petitioner's second offense in this Court for nonpayment of support. Petitioner is hereby sentenced for said contempt to sixty (60) days in jail. However, the Petitioner's sentence will be suspended and the contempt will be purged PROVIDED 30 days of the journalization of that Petitioner pays $10,000.00 through the CSEA within this order. This purge payment is in addition to any obligation to pay current support and arrearage payments that may be due. Support Payment Central (OCSPC), AA support shall be paid through Ohio Child Ohio 43218-2372. Any payments not made through OCSPC P.O. Box 182372, Columbus, shall not be considexed as payment of support. Checks or money orders shall be made payable to "OCSPC'. Cash payments to OCSPC may be made at the Cuyahoga County Treasurer's Office, County Administration Building, 1St Floor - Cashier, 1219 Ontario Street, Cleveland, Ohio 44113. All payments shall include the following: Obligor's name, Social Security Number, SETS case number, and Domestic Relations Court case number. In the event Pe#itioner does not purge the contempt, the Conrt, upon the filing of an an attached certified copy affidavit of the Respondent Stephanie DeLuca or the CSEA with Larry Klayman to of CSEA/OCSPC payment records, shall issue a capias for Petitioner DR-H733 serve the jail sentence ordered above. Said affidavit shall be filed within one (1) year of the journalization of this arder. IT IS FURTHER ORDERED, ADJiIDGED AND DECREED that in addition to the above sentence and civil purge, Petitioner shall do the following: 1) Continue to pay $1,836.00 per month, which includes 2% pracessing charge, as current support for the minor children Isabelle Natalie Klayman (DOB 12l15/1997) and Lance William Klayman (DOB 11-14-1999) ($900.00 per month per child not including 2% processing charge); 2) Pay an additional $360.00 per month toward the arrearage until the arrearage is paid in full or until further order of Court. Processing charges shall not be collected on the arrearage payment since the above arrearage includes all accrued processing charges., Total monthly obligation is $2,196.00. All support under this order shall be withheld or deducted from tlae income or assets of the obligor pursuant to a withholding or deduction notice or appropriate order issued in accordance with Chapters 3119., 3121., 3123., and 3125. of the Revised Code or a withdrawal directive issued pursuant to sections 3123.24 to 312338 of the Revised Code and shall be forwarded. The prior order to post bond dated September 24, 2009 shall remain in full force and effect. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Obligor immediately notify the CSEA, in writing, of any change in, employment (including self- employment), receipt of additional income/monies or termination of benefits. The Obligor shall include a description of the nature of the employment and the name, business address and telephone number of any employer. The Obligor shall irnmediately notify the CSEA of any change in the status of an account from which support is being deducted or the opening of a new account with any financial institution. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Child Support Obligor and the Child Support Obligee shall comply with the request of the CSEA in advance of an administrative review of a support order to provide the following: copy of federal income tax return from the previous year, copy of alf pay stubs within the preceding six (6) months, copy of all other records evidencing the receipt of any other salary, wagas or compensation within the preceding six (6) months, and, if the Obligor is a member of the uniformed services and on active military duty, a copy of the Obligor's Intemal Revenue Service Form W-2, "Wage and Tax Statement," and a copy of a statement detailing the Obligor's earnings and leave with the uniformed services. The Child Support Obligor and the Child Support Obligee shaIl also provide a list of available group health insurance and. health care policies, contracts and plans, and their costs, the current health insurance or health care policy, contract, or plan under which the Obligee and/or Obligor is/are enrolled, and their costs, including any Tricare prograrn offered 6 DR•H733 (;: by the United States Department of Defense available to the Obligee, and any other information necessary to properly review the child support order. Either party's failure to provide any earnings/benefits information pursuant to this order, or failure to comply with the foregoing order of notification shall be considered contempt of Court, punishable by a fine and/or jail sentence. I'1' IS FURTHER ORDERED, AD3TJDGED AND DECREED that the residential parent and legal custodian of the child(ren) immediately shall notify, and the obligor under a child support order may notifg the CSEA of any reason for which the child support order should terminate, including but not limited to the child's death, marriage, emancipation (age 18 or high school campletion/termination), enlistment in the Armed Services, deportation, or change of legal custody. A willful failure to notify the CSEA is contempt of court. The follov^ing information is provided for the use of the CSEA in accordance with §3121.24 and §312130 ofthe Ohio Revised Code: OBLIGEE: NAME^ Stephanie Ann Luck RESIDENCE ADDRESS 2598 Kerwick Road Cleveland, Oh 44118-0000 MAIL,ING ADDRESS: 2598 Kerwick Road Cleveland, Oh 44118-0000 SOCIAI. SECURITY NO.: DATE OF BIRTH: I 1/30/1966 DRIVERS LICENSE NO.: OBLIGOR: NAME: Larry Elliot Klayman RESIDENCE ADDRESS: P.O. Box 2788 Washington, Dc 20013-0000 MAILING ADDRESS P.O. Box 2788 Washington, Dc 20013-0000 SOCIAL SECURITY NO.: DATE OF BIRTH: 07120l1951 DRIVERS LICENSENO.: Attorney fees and court costs may be assessed against the parry held in contempt. The parties affected by the support order shall inform the CSEA of any change of name or other change of conditions that may affect the administration of the order. Willful failure to inform the CSEA of the above information and any changes is contempt of court. EACH PARTY TO THIS SUPPORT ORDER MUST NOTIFY THE. CHILD SUPFORT ENFORCEMENT AGENCY IN WRITING OF HIS OR HER CURRENT MAILING ADDRESS, CURRENT RESIDENCE ADDRESS, CURRENT RESIDENCE TELEPHONE NUMBER, CiJRRENT DRIVER'S LICENSE NUMBER, AND OF ANY 7 DR-H733 ('^^ CHANGES IN THAT INFORD^IATION. EACH PARTY MUST NOTIFY THE AGENCY OF ALL CHANGES UNTIL FURTHER NOTICE FROM THE COURT OR AGENCY, WIIICHEVER ISSUED THE SUPPORT ORDER. IF YOU ARE THE OBLIGOR UNDER A CHILD SUPPORT ORDER AND YOU FAIL TO MAKE THE REQUIRED NOTIFICATIONS, YOU MAY BE FINED UP TO $50 FOR A FIRST OFFENSE, $100 FOR A SECOND OFFENSE, AND $500 FOR EACH SUBSEQUENT OFFENSE. IF YOU ARE AN OBLIGOR OR OBLIGEE UNDER ANY SUPPORT ORDER ISSUED BY A COURT AND YOU WILLFULLY FAIL TO GIVE THE REQUIRED NOTICES, YOU MAY BE FOUND IN CONTEMPT OF COURT AND BE SUBJECTED TO FINES UP TO $1,000 AND IMPRhSONMENT FOR NOT MORE TIIAN 90 DAYS. H+ YOU ARE s^T OBLIGOR AND YOU FAIL TO GIVE THE RE4UIRED NOTICES, YOU MAY NOT RECEIVE NOTICE OF TIIE FOLLOV4'ING ENFORCEMENT ACTIONS AGATNST YOU: IMPOSITION OF LIENS AGAINST YOUR PROPERTY; LOSS OF YOUR PROFESSIONAL OR OCCUPATIONAL LICENSE, DRIVER'S LICENSE, OR RECREATIONAL LICENSE; WITHHOLDING FROM YOUR iNCOME; ACCESS RESTRICTION AND DEDUCTION FROM XOUR ACCOUNTS IN FINANCL4L INSTITUTIONS; AND ANY OTHER ACTION PERMITTED BX LAW TO OBTAIN MONEY FROM YOU TO SATISFY YOUR SUPPORT OBLIGATION. Failure to comply with this support order can result in a contempt action; and, as provided in Ohio Revised Code §2705.05, the penalty for which may be imprisonment for not more than thirty (30) days in jail and/or fine of not more than $250.00 for a first offense, not more than sixty (60) days in jail and/or fine of not more than $500.00 for a second offense, and not more than ninety (90) days in jail andlor not more than $1,000.00 fine for a third or subsequent offense. All orders not modified herein shall remain in full force and effect. Respondent's Motion For Attorney Fees (#289100} filed October 15, 2009 is GRANTED. Petitioner shall pay $2,500.00 toward the Respondent's attorney fees as additionat spousal support for which judgment is rendered and execution may issue. Petitioner shall pay all costs of this action. Costs adjudged as provided in the above entry. ISTRA. ERPIL ERGUN yi,^ ^^ Counsel and parties will take notice that under the provisions of Rules 75 and 53 of the Ohio Rules of Civil Procedure, this matter will be held fourteen (i 4) days from the date on which 8 DR-H733 ^ o this decision is filed. If no objections to this decision are filed prior to said date, the preceding decision will be adopted by the Court, subject to Civil Rule 53(D)(4)(c). A PARTY SIIALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S ADOPTION OF ANY FINDING OF FACT OR CONCLUSION OF LAW IN THIS MAGISTRATE'S DECISION UNLESS TIiE PARTY TIMELY AND SPECIFICALLY OBJECTS TO TFIE FINDING OR CONCLU5ION AS REQUIRED BY CIVIL RULE 53(D)(3)(b). CERTIFICATE OF SERVICE Copies of the foregoing Magistrate's Decision were mailed by the Clerk of Courts by ordinary U.S. mail to the following parties or their counsel of record: JENNIFER L. MALENSEK, GUARDIAN AD LITEM 1220 WEST 6TH STREET SUITE 502 CLEVELAND, OH 44113-0000 WILLIAM WI3ITAKER, ATTORNEY FOR Petitioner 190 NORTH UNION STREET SUITE #301 AKRON, OH 44304-0000 SUZANNE M. JAMBE, ATTORNEY FOR Respondent 3200 NATIONAL CITY CENTER 1900 EAST 9TH STREET CLEVELAND, OH 44114-3485 Copies were mailed by the Clerk of Court on DEPi3TY CLERK OF COURT DA-H733