17AP-664 ( 2018 )

[Cite as 17AP-664, 2018-Ohio-3180.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Joseph Davis, :
Plaintiff-Appellee, :
No. 17AP-664
v. : (C.P.C. No. 08DR-2694)
Carmen Davis, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 9, 2018
On brief: Jefferson E. Liston, for appellee. Argued:
Jefferson E. Liston.
On brief: H. Leon Hewitt, for appellant. Argued: Mary T.
Foster.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations
BRUNNER, J.
{¶ 1} Defendant-appellant, Carmen Davis1, appeals a decision of the Franklin
County Court of Common Pleas, Division of Domestic Relations, entered on September 5,
2017. The decision being appealed adopted a magistrate's decision denying contempt
motions filed by both parties and granting plaintiff-appellee's, Joseph Davis's, motion to
enforce the divorce decree and to order the sale of the marital residence. Because Carmen
failed to object to the magistrate's decision, she has forfeited the arguments she attempts
to assert as assignments of error. Accordingly, we affirm.
1 As the parties share a last name, for the sake of clarity we refer to them by first name, not intending
informality or some inferred personal favoritism.
No. 17AP-664 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 9, 2008, Joseph filed for divorce. (July 9, 2008 Compl.) Two years
later, the trial court entered into the record a divorce decree and shared parenting plan,
both of which were signed by all parties. (July 30, 2010 Divorce Decree; Aug. 10, 2010
Shared Parenting Plan.) The decree provided, in part and relevant to the arguments in this
appeal:
The parties are the owners of real property known as [the] * * *
"Marital Residence"[]. The parties agree [Carmen] shall have
until August 31, 2010, to obtain financing to purchase the
Marital Residence. Should [Carmen] obtain said financing and
close on the purchase, [Joseph] shall gift any and all of his
equitable interest in and to said Marital Residence to
[Carmen.]
Should [Carmen] be unable to obtain financing and close on
the purchase of said Marital Residence on or before August 31,
2010, [Joseph] agrees to use his best efforts to refinance the
balance of the mortgage and [Carmen] shall have until
March 2, 2011, in which to obtain financing and purchase the
Marital Residence. Should [Carmen] obtain financing and
close on the purchase of said Marital Residence on or before
March 2, 2011, [Carmen] shall pay [Joseph], after the payment
of any mortgage(s), property taxes, and all other matters
outstanding associated with the Marital Residence, TWENTY
THOUSAND DOLLARS ($20,000.00) of the net proceeds.
Should [Carmen] be unable to obtain financing and close on
the purchase of the Marital Residence on or before March 2,
2011, [Joseph] and [Carmen] agree that said Marital Residence
shall be immediately listed for sale by a professional real estate
agent and sold. However, on no condition shall possession of
the Marital Residence be transferred and sold until such time
as [Joseph] and [Carmen]'s minor child, [] Davis, graduates
from high school. Upon the sale of the Marital Residence, after
the payment of any mortgage(s), property taxes and all other
matters outstanding associated with the Marital Residence,
[Joseph] shall receive twenty-five percent (25%) of the net
proceeds and [Carmen] shall receive seventy-five percent
(75%) of the net proceeds.
Until such time as their Marital Residence is sold, [Carmen]
will have the use and occupancy of the Marital Residence. Each
party shall cooperate fully in the sale of the Marital Residence
and use their good-faith efforts to achieve the sale of the
No. 17AP-664 3
Marital Residence. * * * [Carmen] shall be responsible for the
mortgage payment, real estate taxes, and any insurance
payment due and payable for the Marital Residence beginning
August 2, 2010, until said property is sold. [Carmen] shall also
be responsible for the utilities and ordinary maintenance.
(July 30, 2010 Divorce Decree at 3-4.)
{¶ 3} After the decree and parenting plan were entered in 2010, no significant
filings appear in the record of the case for several years until 2014. At that point, Carmen
began filing a series of motions heard over several dates in January through June 2016.
Carmen sought to alter the divorce decree to modify and extend spousal and child support.
(Oct. 22, 2014 Mot. to Modify; Jan. 14, 2015 Am. Mot. to Modify.) The domestic court
denied her motions and we subsequently affirmed. Davis v. Davis, 10th Dist. No. 15AP-
1078, 2016-Ohio-7790. Both parties filed discovery motions against each other but these
were resolved in a decision that has neither been separately appealed nor addressed in this
appeal. (Mar. 30, 2016 Jgmt. Entry.) Both Carmen and Joseph sought to hold the other in
contempt for failure to abide by terms of the divorce decree. (Jan. 7, 2015 Mot. for
Contempt; Feb. 13, 2015 Mot. for Contempt.) On June 29, 2015, Joseph also sought an
enforcement order compelling sale of the marital residence because Carmen had never
purchased the home and their child had graduated from high school in May 2015. (June 29,
2015 Mot. to Enforce Sale.)
{¶ 4} The hearing on the motions for contempt, to enforce a sale, and collateral
issues about fees occurred over a period of time on January 4, March 8, April 5, June 6, and
June 7, 2016. (Hearing Tr. Vol. 1, filed Jan. 26, 2018; Hearing Tr. Vol. 2, filed Jan. 26,
2018.) Following the hearing and written closing briefs from both parties, the magistrate
signed a decision on August 25, 2017 in which she found that Carmen had not financed or
purchased the property within any of the time frames provided for by the divorce decree.
(Sept. 5, 2017 Decision at 3, 12.) The magistrate noted that, under the terms of the decree,
the house should have been marketed immediately after Carmen's failure to obtain
financing and, in any event, certainly placed on the market no later than June 2015
following their child's high school graduation in May 2015. Id. at 12. The magistrate
ordered the marital residence to be sold. Id. at 12-13.
{¶ 5} With respect to the motion for contempt for Joseph's alleged failure to
refinance, the magistrate noted that Joseph had begun to refinance the home but that
No. 17AP-664 4
Carmen had requested to be a co-borrower in order to improve her credit. (Sept. 5, 2017
Decision at 3-4; Correspondence Regarding Refinance, Ex. 2 to Jan 7, 2015 Mot. for
Contempt.) The magistrate stated that Joseph agreed to permit Carmen to be a co-
borrower on three conditions: first, that she put the utilities for the house in her name as
ordered by the divorce decree; second, that she meet him halfway between Columbus and
Cincinnati for exchanges of their child; and third, that Carmen agree to sign an amended
tax return for the year 2008 to file jointly. (Sept. 5, 2017 Decision at 3-4.) When Carmen
failed to meet these terms, Joseph declined to move forward with joint refinancing. Id. at
4. Carmen's attorney then threatened suit against the bank resulting in Joseph being
unable to complete refinancing with that bank. Id. The magistrate found that Carmen had
failed to show that Joseph could have qualified for other refinancing of the marital
residence or under what terms. Id. The magistrate also noted that by the time the motion
was heard, the parties' child had graduated and by now it was time to sell the house, not
refinance it. Id. at 5. The magistrate denied Carmen's motion for contempt. Id. at 2-5.
{¶ 6} At the end of the decision, in bold print, the magistrate included the following
warning:
NOTICE TO THE PARTIES:
A party shall not assign as error on appeal the court's
adoption of any finding of fact or conclusion of law in
that decision unless the party timely and specifically
objects to that finding or conclusion as required by
Civil Rule 53 (E)(3)/Juvenile Rule 40(E)(3).
(Emphasis sic.) Id. at 13.
{¶ 7} On September 5, 2017, the trial court adopted the magistrate's August 25,
2017 decision pursuant to Civ.R. 53(D)(4)(e)(i) before the 14-day period for objections
expired. Carmen filed no objections to the decision, despite the written warning appearing
in it and despite the fact that under Civ.R. 53(D)(4)(e)(i), filing objections would have
resulted in an automatic stay until the trial court considered any objections. Instead, on
September 19, 2017, Carmen filed a notice of appeal to this Court. (Sept. 19, 2017 Notice of
Appeal.)
No. 17AP-664 5
II. ASSIGNMENTS OF ERROR
{¶ 8} Carmen posits two assignments of error for our review:
[1.] The Magistrate erred in denying the contempt motion
because Mr. Davis failed to use his best efforts to refinance the
balance of the mortgage.
[2.] The Magistrate erred when she granted Plaintiff's Motion
to Sell the Marital Home and an award of attorney fees.
III. DISCUSSION
{¶ 9} A party may object to a magistrate's decision within 14 days of its entry into
the record. Civ.R. 53(D)(3)(b)(i). Even when a magistrate's decision is adopted by the court
within that period, objections filed within that period remain timely and an automatic stay
of the court's judgment adopting the magistrate's decision occurs by operation of Civ.R.
53(D)(4)(e)(i). In the absence of a party's objections the trial court need not perform an
independent review, but rather, need only review the magistrate's decision to determine if
"there is an error of law or other defect evident on the face of the magistrate's decision."
Compare Civ.R. 53(D)(4)(c) with Civ.R. 53(D)(4)(d). On appeal, any party that failed to
object to the magistrate's decision before the trial court cannot raise objections before the
appellate court except to assert that plain error is evident in the trial court's decision:
Waiver of right to assign adoption by court as error on
appeal. Except for a claim of plain error, a party shall not
assign as error on appeal the court's adoption of any factual
finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that
finding or conclusion as required by Civ.R. 53(D)(3)(b).
(Emphasis sic.) Civ.R. 53(D)(3)(b)(iv).
{¶ 10} The Supreme Court of Ohio has made clear that this rule must be followed:
Claimant's arguments before us derive directly from the
conclusions of law contained in the magistrate's decision.
Claimant, however, did not timely object to those conclusions
as Civ.R. 53(E)(3) requires. Civ.R. 53(E)(3)(b) prohibits a party
from "assigning as error on appeal the court's adoption of any
finding of fact or conclusion of law unless the party has
objected to that finding or conclusion under this rule."
No. 17AP-664 6
State ex rel. Booher v. Honda of Am. Mfg., 88 Ohio St.3d 52, 53-54 (2000) (citing a
predecessor division of Civ.R. 53). It continues to require that parties abide by this rule, as
does this Court:
Appellant's arguments derive directly from the conclusions of
law provided in the magistrate's decision. Appellant, however,
did not object to those conclusions as Civ.R. 53(D)(3)(b)
requires. Thus, pursuant to that rule and State ex rel. Booher
v. Honda of Am. Mfg., Inc. (2000), 88 Ohio St.3d 52, 2000
Ohio 269, 723 N.E.2d 571, we can proceed no further.
State ex rel. Findlay Indus. v. Indus. Comm., 121 Ohio St.3d 517, 2009-Ohio-1674, ¶ 3; see
also, e.g., Lavelle v. Lavelle, 10th Dist. No. 12AP-159, 2012-Ohio-6197, ¶ 8.
{¶ 11} Carmen does not acknowledge in her appellate brief that she filed no
objections to the magistrate's decision before the trial court. Nor does she allege or
otherwise demonstrate plain error. Carmen has forfeited all arguments against the trial
court's decision in her appeal before this Court. As such, Carmen's two assignments of error
are overruled.
IV. CONCLUSION
{¶ 12} Carmen did not object to the magistrate's decision and did not request that
we find or consider plain error. Accordingly, her arguments are forfeited and, on that basis,
we overrule both of her assignments of error. The judgment of the Franklin County Court
of Common Pleas, Division of Domestic Relations, is affirmed
Judgment affirmed.
TYACK and HORTON, JJ., concur.