A.A. v. F.A. , 2019 Ohio 1706 ( 2019 )

[Cite as A.A. v. F.A., 2019-Ohio-1706.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
A. A., : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
F.A., : Case No. 18 CAF 10 0079
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Domestic
Relations Division, Case No. 14 DR
A 010028
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 3, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW M. NIERMAN F. A.
Nierman Law LLC Pro Se
1391 W 5th Avenue, Unit 448 8155 Appleridge Drive
Columbus, Ohio 43212 Lewis Center, Ohio 43035
Delaware County, Case No. 18 CAF 10 0079 2
Baldwin, J.
{¶1} F.A., Mother, appeals the decision of the Delaware County Court of
Common Pleas denying her motion to Modify Decree of Divorce and for a Change in
Allocation of Parental Rights and Responsibilities. Appellee is Father, A. A.
{¶2} At all times during these proceedings, Mother appeared pro se. As we noted
in our prior decision in this matter, she is bound by the same rules and procedures as
litigants who retain counsel. A. A. v. F. A., 5th Dist. Delaware No. 17 CAF 12 0078, 2018-
Ohio-3376, ¶ 26.
STATEMENT OF FACTS AND THE CASE
{¶3} Appellant filed a motion to reallocate parental rights and responsibilities on
March 16, 2018, less than four months after the decree of divorce, journalized on
November 28, 2017, awarded custody to appellee. Appellant focused on the children’s
school attendance and performance as well as appellee’s purported financial difficulties
as the basis for her contention that there was a change in circumstances warranting
modification. The Magistrate disagreed and overruled her motion. Appellant did not file
objections to the magistrate’s order and did not provide the trial court with a transcript of
the hearing.
{¶4} The parties in this matter were divorced pursuant to a decree journalized on
November 28, 2017 and appellee was granted “sole allocation of parental rights and
responsibilities and shall be the residential parent and legal custodian of the parties’ two
minor children.” Judgment Entry, November 28, 2017, Docket #156, page 14, paragraph
5. The trial court also ordered that:
Delaware County, Case No. 18 CAF 10 0079 3
[u]nless otherwise agreed as allowed by Plaintiff, Defendant’s parenting
time shall remain supervised at a third-party agency--Andrews House, or
Welcome to Our Place--or Marion Care-Fit if there is no other alternative.
The supervision will remain for minimum of 6 or 9 monthly sessions-until
Plaintiff and Defendant agree otherwise/Defendant files the necessary
modification motion with evidence of the counseling for her with an
appropriate provider regarding the report repairing the estrangement.
Judgment Entry, November 28, 2017, Docket #156, page 14, paragraph 6.
{¶5} Relevant to the matter before this court is the trial court’s discussion on
pages 8 and 9 of its November 28, 2017 judgment entry regarding appellant’s failure to
provide the trial court with complete transcripts of the hearings. The trial court specifically
noted that Civ.R. 53 (D)(3)(b)(iii) and the Local Rule required that objections relating to a
finding of fact be supported by transcript of all the evidence submitted to the magistrate.
We noted the impact of a lack of a complete transcript in our prior decision in this matter.
A. A. supra at 29-35. Appellant knew or should have known of the need to file a transcript
before challenging the magistrate’s denial of her motion. Her failure to provide that
transcript to the trial court limits the extent of our review.
{¶6} Appellant contended in her Motion to Modify the Allocation of Parental
Rights and Responsibilities that the children were having problems in school, were
excessively absent or tardy, that appellee was not able to pay school fees or the mortgage
on the family home and that she had obtained a new residence. The facts, she alleged,
warranted a change in custody.
Delaware County, Case No. 18 CAF 10 0079 4
{¶7} The matter came on for trial on August 28, 2018 before a magistrate. On
August 30, 2018 the magistrate issued a decision including findings of fact and
conclusions of law denying appellant’s motion. The magistrate noted that one child
missed a significant amount of school, but that the evidence established that the child’s
absences and tardies were relatively consistent through the second, third and fourth
quarters of the school. These dates are significant because magistrate determined that
any change in circumstances would have had to occur from the second quarter onward.
The magistrate also found that the evidence supported the father’s testimony that the
child’s absences and tardies were the result of the child’s stomach problems and that her
attendance had improved since seeking treatment. With regard to some absences from
individual classes the magistrate accepted the father’s explanation that the child was in
the library getting caught up on her other schoolwork and has since spoken with the child
about this issue and that her attendance has improved. Magistrate’s Decision, Aug. 30,
2018, docket # 232, pages 2-3, paragraphs 9-12.
{¶8} The magistrate concluded that the second child’s grades had improved from
the date of the decree and that although the first child’s grade point average had dropped
throughout the school year, the underlying reason for that change was the mother’s
communication with the child and the child’s stomach issues. The magistrate noted that
father had talked with the first child and has begun tutoring her on his own. The magistrate
also found that the father was talking to school officials to assist his first child. Magistrate’s
Decision, Aug. 30, 2018, docket # 232, pages 3-4, paragraphs 13-21.
{¶9} With regard to the alleged financial difficulties, the magistrate found that the
father was current on both the first and second mortgages, that he has an agreement with
Delaware County, Case No. 18 CAF 10 0079 5
both loan servicers as to the payments of late fees, the house is not in foreclosure or in
any danger of being repossessed. Regarding school fees the magistrate found the father
plans on paying those fees shortly and that he has until January 2019 to pay the fees.
Magistrate’s Decision, Aug. 30, 2018, docket # 232, page 5, paragraphs, 27-29.
{¶10} The magistrate found that the appellee was more credible than appellant;
Magistrate’s Decision, Aug. 30, 2018, docket # 232, page 4, paragraph 23 and that
appellant did not demonstrate a change in circumstances sufficient to warrant
modification of the divorce decree. R.C. 3109.04 (B)(1)(a). The magistrate concluded that
even if a change in circumstances had occurred, reallocation of parental rights and
responsibilities would not be in either child’s best interest. Magistrate’s Decision, Aug. 30,
2018, docket # 232, page 5, paragraph 33. The magistrate further found that the harm
likely to be caused by change of environment is not outweighed by the advantages of the
change of environment to either child, and that appellant failed to establish that either
child would benefit from a change of environment. Magistrate’s Decision, Aug. 30, 2018,
docket # 232, page 7, paragraphs 37, 38. Significantly, the magistrate found that:
Everything presented at trial indicates that only harm would come
with a change of environment. As stated before, the children have had
limited, to no contact with mother since the decree. None of these
interactions have been in a supervised environment as ordered. Mother has
not worked on the issues that were present at the time of the decree or any
other manner other than potentially self-help.
Delaware County, Case No. 18 CAF 10 0079 6
Magistrate’s Decision, Aug. 30, 2018, docket # 232, page 7, paragraph 39.
{¶11} Appellant did not order the transcript for review by the trial court and did not
file objections to the magistrate’s decision. On September 19, 2018 the trial court
independently reviewed the matter and found no error of law or other defect evident on
the face of the magistrate’s decision and adopted the decision and incorporated the
findings of fact and conclusions of law by reference. Judgment Entry, September 19,
2018, Docket #235. Appellant filed an appeal from this entry and submitted two
assignments of error:
{¶12} “I. MAGISTRATE'S DECISION IS PLAIN ERROR.(SIC).”
{¶13} “II. THE TRIAL COURT ADOPTING THE MAGISTRATE'S DECISION IS
ABUSE OF DISCRETION.”
STANDARD OF REVIEW
{¶14} Appellant argues we should review the decision sub judice for plain error
and for abuse of discretion. The application of a plain error review is limited to “* * *
extremely rare situations in which the plain-error doctrine must be invoked in order to
prevent a manifest miscarriage of justice, since the result reached by the trial court is
patently” contrary to law. Reichert v. Ingersoll, 18 Ohio St.3d 220, 223–24, 480 N.E.2d
802, 805–06 (1985). “[T]he doctrine is sharply limited to the extremely rare case involving
exceptional circumstances where the error, left unobjected to at the trial court, rises to the
level of challenging the legitimacy of the underlying judicial process itself. Goldfuss v.
Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099 (1997).
Delaware County, Case No. 18 CAF 10 0079 7
{¶15} In order to find an abuse of discretion, we must determine that the trial
court's decision was unreasonable, arbitrary or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. We must look at
the totality of the circumstances in the case sub judice and determine whether the trial
court acted unreasonably, arbitrarily or unconscionably.
{¶16} The parameters of our review are further restricted by appellant’s decision
to not file a transcript of the hearing before the magistrate with the trial court or file
objections. The appellant’s first assignment of error addresses the findings of the
magistrate, but “[t]his Court has held on numerous occasions that where an appellant fails
to provide a transcript of the original hearing before the magistrate for the trial court's
review, the magistrate's findings of fact are considered established. See State v. Leite
(April 11, 2000), Tuscarawas App. No.1999AP090054, unreported; Fogress v. McKee
(Aug. 11, 1999), Licking App. No. 99CA15, unreported; Strunk v. Strunk (Nov. 27, 1996),
Muskingum App. No. CT96-0015, unreported.” Moton v. Ford Motor Credit Co., 5th Dist.
Richland No. 01 CA 74, 2002-Ohio-2857.
{¶17} Because appellant did not file a transcript as required by Civ.R. 53:
The magistrate's findings of fact are considered established and may
not be attacked on appeal.’ ” J.S. v. T.S., 5th Dist. Knox No. 16CA18, 2017-
Ohio-1042, ¶ 22, quoting Murray v. Miller, 5th Dist. Richland No. 15CA02,
2015-Ohio-3726, ¶ 35. “Without a transcript of the hearing, a trial court is
required to accept all the magistrate's findings of fact as true and only review
the legal conclusions drawn from those facts.” Bahgat v. Kissling, 10th Dist.
Delaware County, Case No. 18 CAF 10 0079 8
Franklin No. 17AP-641, 2018-Ohio-2317, ¶ 21, citing JPMorgan Chase
Bank, N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 14, fn.
1. Even though a transcript was filed with this court, on appellate review, we
cannot review the factual findings because we cannot consider the
transcript that the trial court did not have the benefit of when it made its
decision. State ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493,
2015-Ohio-2003, 39 N.E.3d 1220, ¶ 11.
Matter of J.M., 5th Dist. Fairfield No. 18-CA-25, 2019-Ohio-520, ¶ 40.
{¶18} Our ability to review the trial court’s decision is further restricted by
appellant’s failure to file objections to the magistrate’s decision. Because appellant did
not file objections before filing the appeal appellant is prohibited from raising factual errors
on appeal. Arthur v. Trimmer, 5th Dist. Delaware No. 02CA06029, 2003-Ohio-2034, ¶ 14.
While we have found that failure to file objections does not prohibit review for plain error,
the use of that doctrine is severely restricted. Kelley v. Holmes Cty. Sheriff's Dept., 5th
Dist. Holmes No. 99 CA 4, 2000 WL 968522, *2 ““Plain error” is often construed to
encompass “error[s] of law or other defect[s] evident on the face of the magistrate's
decision,” which prohibit the adoption of a magistrate's decision even in the absence of
objections. Ohio Civ.R. 53(D)(4)(c); cf. In re Clowtis, 11th Dist. Nos.2006-L-042 and 2006-
L-043, 2006-Ohio-6868, ¶ 13 (citations omitted). McConkey v. Roberts, 5th Dist.
Guernsey No. 06 CA 35, 2007-Ohio-6102, ¶ 22; Hull v. Hull, 5th Dist. Stark No.
2011CA00155, 2012-Ohio-970, ¶¶ 29-33. “[T]he plain error doctrine is not favored and
may be applied only in the extremely rare case involving exceptional circumstances
Delaware County, Case No. 18 CAF 10 0079 9
where error, to which no objection was made at the trial court, *** seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio
St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099 (1997). Even if we were to discover plain
error, we have “discretion to disregard the error and should correct it “only to prevent a
manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178,
372 N.E.2d 804, paragraph three of the syllabus as quoted in State v. Wamsley, 117 Ohio
St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 27 (2008). “This Court may not reverse the
judgment of the trial court on the basis of plain error, unless appellant has established
that the outcome of trial clearly would have been different but for the alleged error.” State
v. Kobelka, 9th Dist. Lorain No. 01CA007808, 2001 WL 1379440, *2 (Nov. 7, 2001).
{¶19} Appellant’s first assignment of error attacks the magistrate’s decision,
asserting that the magistrate has committed plain error. Appellant apparently has
reviewed the requirements of Civ.R. 53, but has incorrectly concluded that the
magistrate’s decision is a final, appealable order subject to this court’s review. We may
only review those orders that are final and appealable and the magistrate’s decision in
this matter does not qualify as a final order as defined in R.C. 2505.02. A magistrate
cannot issue a judgment that terminates a matter, but only issues a decision upon which
a judge may base an order that can be final and appealable. “Only a judge, not a
magistrate, may terminate a claim or action by entering judgment. Harkai v. Scherba
Industries, Inc., 136 Ohio App.3d 211, 218, 736 N.E.2d 101, 106 (9th Dist.2000).
Delaware County, Case No. 18 CAF 10 0079 10
{¶20} Because the magistrate’s decision is not a final appealable order and
because the appellant’s first assignment of error focuses upon that decision, appellant’s
first assignment of error is overruled.
{¶21} Appellant contends the trial court abused its discretion by adopting the
referee’s report in her second assignment of error, but because Appellant failed to file
written objections to the magistrate's findings of fact, Appellant cannot assign this as an
error for appeal, other than under plain error review. Hull v. Hull, 5th Dist. Stark No.
2011CA00155, 2012-Ohio-970, ¶¶ 29-33.
{¶22} Appellant does not argue plain error, but only an abuse of discretion,
referring to the alleged errors in the magistrates findings of fact with citations to the
transcript and suggesting that the entry was insufficient because the trial court “did not
provide adequate reasoning for adopting the decision and the Trial Court did not state
why or in what way the decision was valid” citing Stadler v. Earney, 8th Dist. Cuyahoga
No. 86040, 2005-Ohio-6720, ¶¶ 7-9. Appellant’s failure to argue plain error at this
juncture is fatal as we are constrained to review the trial court’s actions for plain error only
and appellant has failed to cite legal authority and develop an argument as to the
existence of an obvious defect in the proceedings that affected appellant’s substantial
rights. State v. Benitez-Maranon, 9th Dist. Summit No. 26461, 2014-Ohio-3575, ¶ 7.
{¶23} We have reviewed the record and we hold that it does not contain any error
that would *** seriously affects the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” Goldfuss, supra.
Delaware County, Case No. 18 CAF 10 0079 11
{¶24} However, if we were to consider appellant’s argument our decision would
remain unchanged. The case cited by appellant in support of her contention the trial
court’s entry was insufficient is inapposite because it addressed a motion for a new trial.
That court relied upon the Supreme Court of Ohio’s ruling that “[w]hen granting a motion
for a new trial based on the contention that the verdict is not sustained by the weight of
the evidence, the trial court must articulate the reasons for so doing in order to allow a
reviewing court to determine whether the trial court abused its discretion in ordering a
new trial.” Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144, 459 N.E.2d 223,
syllabus.
{¶25} The appellant herein did not file objections to the magistrate’s decision and
“[i]f no timely objections are filed, the court may adopt a magistrate's decision, unless it
determines that there is an error of law or other defect evident on the face of the
magistrate's decision.” Civ.R. 53(D)(4)(c). In this case the trial court found there was no
error of law or other defect evident on the face of the magistrate's decision. The Civil
Rule does not require that the trial court provide any further rationale for its decision and
we will not impose such an obligation.
{¶26} The trial court “independently reviewed the matter and, having found no
error of law or other defect evident on the face of the Magistrate's Decision” adopted and
incorporated the findings of fact and conclusions of law by reference. Judgment Entry,
Sept. 19, 2018, Docket # 235. Therefore, the trial court properly reviewed the magistrate's
decision. Snider v. Snider, 3rd Dist. Mercer No. 10-04-06, 2004-Ohio-5764, ¶ 10. Upon
review of the case sub judice, we would find that there are sufficient factual findings within
Delaware County, Case No. 18 CAF 10 0079 12
the Magistrate's decision to support the conclusions of law and that the trial court did not
abuse its discretion.
{¶27} Because appellant failed to file objections to the magistrate’s decision, we
are constrained to review the second assignment for plain error. We hold that there is no
plain error and the appellant’s second assignment of error is overruled.
{¶28} The decision of the Delaware County Court of Common Pleas, Domestic
Relations Division is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.