Schulte v. Schulte - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Schulte, Appellant, v. Schulte, Appellee.
[Cite as Schulte v. Schulte (1994), Ohio St.3d .]
Domestic relations -- R.C. 3105.171 applies prospectively only
to those divorce cases filed after its effective date.
R.C. 3105.171 applies prospectively only to those divorce cases
filed after its effective date, January 1, 1991.
(Nos. 93-1588 and 93-1745 -- Submitted September 21, 1994
-- Decided November 30, 1994.)
Appeal from and Certified by the Court of Appeals for Wood
County, No. 91WD075.
This case involves the divorce of Sonia D. and John
Schulte. The parties were married on October 17, 1981. While
married, they had two children, Leslie and Elizabeth. Sonia
Schulte, appellant herein, filed for divorce on July 21, 1989.
Sonia and John Schulte both worked as stockbrokers in a
business known as John F. Schulte, Inc., which they started
during 1981. The business owned numerous pieces of office
furniture, the real property from which the business was run,
and a 1987 Cadillac. Marital property included the family home
and a partial interest in several rental properties.
During the divorce, Sonia argued for custody of Elizabeth
based, in part, on allegations that John had sexually abused
Elizabeth, their then four-year-old daughter. Sonia learned of
the alleged abuse several days after it occurred when Elizabeth
began crying while being read a story. After Elizabeth started
crying, she complained that "her bottom was very sore." Sonia
asked "if someone had touched her down there?" Elizabeth
responded that her father had touched her. This conversation
occurred on April 14, 1990, with the alleged abuse occurring on
April 10, 1990. On May 7, 1990, Elizabeth was interviewed by
Belinda Rhoades, Ph.D., a psychologist who specializes in child
development. Dr. Rhoades' evaluation was that Elizabeth's
actions during the interview were abnormal and were consistent
with someone who had experienced sexual abuse. Dr. Rhoades
based her evaluation on remarks of Elizabeth's, drawings
Elizabeth made, and how Elizabeth played with anatomically
correct dolls.
Prior to trial, the trial judge conducted an in camera

interview with Elizabeth for purposes of determining her
competency to testify under Evid. R. 601(A). Based upon the
interview, the trial judge found Elizabeth incompetent to
testify. At trial, the judge refused to allow Sonia or Dr.
Rhoades to testify as to what Elizabeth had told them regarding
the alleged abuse. The trial court based its decision to
exclude that testimony on the grounds that it had found
Elizabeth incompetent to testify.
On June 18, 1991, the trial court entered judgment. It
awarded Sonia custody of the two children. Because the parties
earned incomes that were significantly lower than expected, the
trial court "imputed" an annual income of $24,000 a year to
both parties. John was ordered to pay child support of $48.34
per week per child. The property was divided so that each
party was awarded an equal interest in the rental properties, a
total interest in the household goods they separately
possessed, and varying interests in other marital property.
Finally, the trial court found that John had not sexually
abused Elizabeth. The trial court granted John supervised
visitation for eight weeks and unsupervised visitationn
thereafter, pursuant to the schedule established by the court.
Sonia appealed the trial court's decision. She argued,
inter alia, that the trial court erred: (1) in finding
Elizabeth incompetent to testify; (2) in excluding the
statements made by Elizabeth to Dr. Rhoades and Sonia; (3) in
making the child support determination based upon "imputed"
income; (4) by not making the specific findings required by
R.C. 3105.171 with respect to the division of marital property;
and (5) by otherwise abusing its discretion in dividing the
marital property.
The court of appeals affirmed the trial court's
determination that Elizabeth was incompetent to testify.
However, it reversed the trial court's exclusion of the
statements made by Elizabeth to her mother and Dr. Rhoades.
Specifically, the court of appeals found that the trial
court improperly excluded the statements as hearsay.1 It
held that the statement to the mother may have qualified
under Evid. R. 803(2), as an excited utterance, and the
statement to Dr. Rhoades may have qualified under Evid.
R. 803(4), as a statement made for the purposes of
obtaining treatment and diagnosis. The court of appeals
found that the trial court also erred in determining the
amount of child support and not complying with the requirements
of R.C. 3113.217. Finally, the court of appeals held that R.C.
3105.171 did not apply to this case, because it became
effective after the divorce case was filed, and that the trial
court did not otherwise abuse its discretion in dividing the
marital property. Consequently, the court of appeals affirmed
in part, reversed in part and remanded the cause to the trial
court.
The court of appeals, finding its judgment to be in
conflict with the judgments pronounced upon the same question
by the Butler County Court of Appeals in Lairson v. Lairson
(June 29, 1992), Nos. CA91-04-071 and CA91-05-087, unreported,
1992 WL 156121, and the Franklin County Court of Appeals in
Houck v. Houck (Aug. 27, 1991), No. 91AP-296, unreported,
certified the record of the case to this court for review and

final determination.

Joyce E. Barrett, for appellant.
James E. Hitchcock, for appellee.

Wright, J. The first issue the court must address is
whether the trial court used the correct standard to determine
that Elizabeth was not competent to testify under Evid. R.
601(A). Evid. R. 601 provides: "Every person is competent to
be a witness except: (A) Those of unsound mind, and children
under ten years of age, who appear incapable of receiving just
impressions of the facts and transactions respecting which they
are examined, or of relating them truly."
This court recently has clarified what a trial court must
consider in making a competency determination under Evid. R.
601(A): "In determining whether a child under ten is competent
to testify, the trial court must take into consideration (1)
the child's ability to receive accurate impressions of fact or
to observe acts about which he or she will testify, (2) the
child's ability to recollect those impressions or observations,
(3) the child's ability to communicate what was observed, (4)
the child's understanding of truth and falsity and (5) the
child's appreciation of his or her responsibility to be
truthful." State v. Frazier (1991), 61 Ohio St.3d 247, 574
N.E.2d 483, syllabus. The Rules of Evidence, subject to
certain exceptions not applicable here, apply equally to both
criminal and civil matters. Evid. R. 101(A). Consequently,
even though Frazier involved a determination of competency in
the criminal context, the interpretation we made in Frazier
applies with equal weight to the use of the rule in the civil
context.
A trial court is not required, while making a competency
determination, to make express findings on the considerations
outlined in Frazier. Such a requirement would unduly burden
our trial courts with unnecessary formality. Instead, the
trial court is merely required to consider the Frazier factors
while making the competency determination.
The Frazier factors play a slightly different role in the
hands of a court reviewing a competency determination. As we
noted in Frazier, the determination of competency is within the
sound discretion of the trial judge. 61 Ohio St.3d at 251, 574
N.E.2d at 486-487. See, also, State v. Boston (1989), 46 Ohio
St.3d 108, 115, 545 N.E.2d 1220, 1228. The Frazier factors
form the backdrop against which a reviewing court evaluates
whether the trial judge's determination was an abuse of
discretion.
A review of the competency hearing transcript in this case
leads us to the conclusion that the trial judge did not abuse
his discretion in finding Elizabeth incompetent to testify. At
the time of the hearing, Elizabeth was four years old. During
the hearing, Elizabeth showed a basic awareness of her familial
surroundings by stating her name and age, as well as the names
of her sister and parents. However, she was very unclear with
respect to the facts surrounding the alleged sexual abuse. She
stated that while helping her bathe, her father "put his thing
in my butt." When asked whether she ever told anyone about the
incident, she responded, "They just knew." When asked whether

she was in pain as a result of the alleged incident, Elizabeth
became very distracted. She answered unresponsively by stating
that her father "hit" her. When asked when the "hitting"
occurred, Elizabeth stated, "[s]ome other time." The trial
judge also asked, "Did your mommy tell you to come and tell me
this today?" Elizabeth responded, "Yes." When asked when her
mother told her this, she answered, "[n]ever." When asked why
she now said that her mother did not tell her to come to the
hearing, Elizabeth would only state, "'[c]ause."
A review of the hearing transcript as a whole, in light of
the Frazier factors, supports the trial judge's finding that
Elizabeth was not competent to testify. Her significant
confusion regarding the most basic facts of the alleged
incident in the bathtub supports a finding that she was unable
to observe and recollect accurate impressions of the facts
regarding the alleged abuse. Additionally, the fact that she
was very distracted and uncertain during the hearing supports a
finding that she was not capable of accurately communicating
what she believed she observed. Finally, the last portion of
the competency hearing cited above certainly calls into
question her understanding of truth and falsity and her
appreciation of her responsibility to be truthful.
Consequently, we hold that the trial court did not abuse its
discretion in finding Elizabeth incompetent to testify.
The second issue we must address is whether the trial
court acted properly in dividing the marital property.
Specifically, the issue on appeal is whether the trial court
erred in not following the requirements of R.C. 3105.171.
Am. Sub. H.B. No. 514, which split the former R.C. 3105.18
into the new R.C. 3105.18 and 3105.171, became effective on
January 1, 1991. (143 Ohio Laws, Part III, 5516.) The
appellant filed her complaint for divorce on July 21, 1989.
The appellant urges this court to find that R.C. 3105.171
should be applied retroactively to divorce cases filed before
the effective date of the statute. We act today to resolve the
conflict between the several courts of appeals that have
confronted this question.
In order for a statute to be applied retroactively, a
court must find that the General Assembly intended the statute
to apply retroactively and that retroactive application of the
statute is constitutional under Section 28, Article II of the
Ohio Constitution. Warren Cty. Bd. of Commrs. v. Lebanon
(1989), 43 Ohio St.3d 188, 189, 540 N.E.2d 242, 244. See,
also, Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d
100, 106, 522 N.E.2d 489, 495-496. In this case, we need go no
further than considering the intent of the General Assembly.
R.C. 1.48 creates a presumption that a statute is to be
applied prospectively unless the General Assembly expressly
makes the statute retroactive. In this case, there is no
language in the statute that supports the conclusion that the
General Assembly intended R.C. 3105.171 to apply
retroactively. Consequently, we hold that R.C. 3105.171
applies prospectively only to those divorce cases filed after
its effective date, January 1, 1991. This ends our inquiry.
We need not reach the constitutional question.
The judgment of the court of appeals on the two issues
appealed herein is hereby affirmed.

Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Grey, F.E. Sweeney and Pfeifer,
JJ., concur.
Douglas, J., concurs in part and dissents in part.
Lawrence Grey, J., of the Fourth Appellate District,
sitting for Resnick, J.
FOOTNOTE:
1 Given the trial court's determination that Elizabeth
was incompetent to testify, the trustworthiness and, therefore,
the admissibility of Elizabeth's statements through the
testimony of third parties are questionable at best. However,
John Schulte voluntarily dismissed his cross-appeal.
Therefore, we do not address the propriety of the court of
appeals' reversal on this issue.
Douglas, J., concurring in part and dissenting in
part. I concur with the majority opinion in its syllabus
holding. I do not agree that the judgment of the court of
appeals should be affirmed. Rather, I would affirm the
judgment of the court of appeals in part and reverse that
judgment in part. I would reinstate the judgment of the trial
court in its entirety, except for its determination of child
support.