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Martin v. Martin2/23/2004
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. Neither the local rule nor R.C. 3109.04(C) mentions recommendations of the investigator. Donna interprets the absence of reference to recommendations by the investigator to mean such are forbidden by the rules. This interpretation is not supported by the case law in Ohio.
. Appellate courts in Ohio have held that trial courts may consider the report of a court appointed investigator despite the hearsay inherent in the report. See Webb v. Lane (Mar. 15, 2000), 4th Dist. No. 9CA12, unreported, 2000 WL 290383; Sayre v. Hoelzle-Sayre (1994), 100 Ohio App.3d 203, 653 N.E.2d 712. "As long as the investigator is made available for cross examination, the parties' due process rights are protected, and a court may consider the report, even without oral testimony by the investigator, and despite any hearsay that may be contained in the report." Id. The language of both R.C. 3109.04(C) and Civ.R. 75(D) implicitly gives the trial court the authority to admit custody investigation reports as evidence, since they can be ordered by the court and the investigator is subject to cross examination. Scarbrough v. Scarbrough (July 18, 2001), 9th Dist. No. 00CA007743, unreported, 2001 WL 808974. The court must not base its decision entirely on the report of the investigator though. Hilliard v. Hilliard (1971), 29 Ohio App.2d 20, 277 N.E.2d 557. The report must contain sufficient facts from which the judge may draw his conclusion. Nolte v. Nolte (1978), 60 Ohio App.2d 227, 396 N.E.2d 807.
. Neither party in this case chose to subpoena the investigator and exercise his/her right to cross-examine the investigator as to the contents of his report. Both parties were presented with and took advantage of the opportunity to examine the report of the investigator prior to trial. Both parties were also free to testify themselves in opposition to findings in the report and were free to call witnesses to contradict findings in the report. While the trial court did consider the investigator's report in making his findings of fact, the trial court also stated that it considered all of the evidence admitted during the trial and observed the parties and witnesses and assessed their credibility. We must assume that the trial court gave the investigator's report the appropriate weight in making his findings of fact. We find that the trial court complied with the requirements of R.C. 3109.04(C), as well as the related rules regarding the admission of evidence, and since Rule 18 of the Marion County Family Court is essentially identical to R.C. 3109.04(C), we find the that the trial court, likewise, complied with this rule. Accordingly, we overrule Donna's second assignment of error.
. Having found no merit with the assignments of error presented for our review, we affirm the judgment of the Court of Common Pleas of Marion County.
Judgment affirmed.
CUPP and SHAW, JJ., concur.
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