Parrish v. Parrish , 2015 Ohio 4560 ( 2015 )

[Cite as Parrish v. Parrish, 2015-Ohio-4560.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JERRY L. PARRISH : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 15CA4
HEIDI PARRISH AKA HEIDI :
BARRETT :
: OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Juvenile Division, Case
No. 214-3036
JUDGMENT: Affirmed in part; reversed and remanded in
part
DATE OF JUDGMENT ENTRY: October 30, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
HARLOW WALKER HEIDI PARRISH (a.k.a. BARRETT) Pro Se
120 1/2 East High Street 6 McGibney Road
Mount Vernon, OH 43050 Mount Vernon, OH 43050
Knox County, Case No. 15CA4 2
Gwin, P.J.
{¶1} Appellant appeals the February 3, 2015 and the February 6, 2015
judgment entries of the Knox County Court of Common Pleas, Juvenile Division.
Facts & Procedural History
{¶2} Appellant Jerry Parrish is the father of the minor child, C.P., born on
September 19, 2005. Appellee Heidi Parrish aka Heidi Barrett is the mother of C.P. On
March 7, 2014, appellant filed a complaint for allocation of parental rights and
responsibilities and parenting time. In September of 2014, a social worker completed a
home study on each appellant and appellee. A magistrate held a hearing on appellant's
complaint on November 4, 2014.
{¶3} The magistrate issued a decision on December 22, 2014. The decision
stated, in part:
In consideration of the testimony and evidence presented herein,
and in consideration of Sections 2151.23 and the relevant sections of
Chapter 3119, 3121, 3123, and 3125 of the Revised Code, the Court
hereby FINDS and ORDERS:
1. Plaintiff, Jerry Parrish, is the residential parent and legal
custodian of [C.P.], the minor child herein, born on September 19, 2005
pursuant to Section 3109.042 of the Revised Code.
2. Defendant, Heidi Parrish aka Heidi Barrett, as Obligor, shall pay
child support to Plaintiff, Jerry Parrish, as Obligee, in the amount of $50.00
per month * * * effective March 7, 2014.
Knox County, Case No. 15CA4 3
{¶4} Additionally, the magistrate's decision required appellee to actively seek
full-time employment. The magistrate granted appellee parenting time each week from
Wednesday after school to Friday. The trial court judge adopted and signed the
December 22, 2014 magistrate's decision.
{¶5} On January 5, 2015, appellee filed a letter with the trial court stating that
she was "filing an objection to the Magistrate's Decision in the case of legal custody of
[C.P.]." Appellee included information concerning C.P.'s daily life, her medical
conditions, and the insurance/bills of C.P. Appellee stated that she is a stay-at-home
mother and thus has no need to find employment. Finally, appellee stated that she
feels it "is in our daughter's best interest that I be named her legal and residential
parent." Attached to appellee's letter is a document from American Health Network
regarding a counseling session and a police report appellee filed regarding allegedly
finding marijuana in her daughter's pocket when appellant dropped her off. Appellant
filed a letter on January 15, 2015 responding to appellee's letter. Attached to
appellant's letter is a document from C.P.'s teacher, a document from Knox County
Department of Job and Family Services, and a document from the American Health
Network.
{¶6} The trial court issued a judgment entry on February 3, 2015, stating that,
"the Court has reviewed the Magistrate's Decision and Objections thereto." The trial
court ordered that: (1) appellee be designated the residential parent and legal
custodian of C.P., (2) the parties shall develop a parenting schedule, and (3) the order
for appellee to seek work is vacated and the prior order of child support for appellant is
reinstated. The trial court issued a nunc pro tunc judgment entry on February 6, 2015 to
Knox County, Case No. 15CA4 4
include a parenting time schedule for appellant. The remainder of the judgment entry
was the same as the February 3rd judgment entry.
{¶7} Appellant appeals from the February 3 and February 6 judgment entries of
the Knox County Common Pleas Court, Juvenile Division, and assigns the following as
error:
{¶8} "I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, THEREBY VIOLATING APPELLANT'S PROCEDURAL DUE
PROCESS RIGHTS, BY ACCEPTING AND RULING ON APPELLEE'S UNSWORN
WRITTEN STATEMENT AS A TIMELY AND PROPER OBJECTION TO THE
MAGISTRATE'S DECISION, WHEN THE OBJECTION FAILED TO "...STATE WITH
PARTICULARITY ALL GROUNDS FOR OBJECTION" AS REQUIRED BY JUV. R.
40(D)(3)(b)(ii).
{¶9} "II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, THEREBY VIOLATING APPELLANT'S PROCEDURAL DUE
PROCESS RIGHTS, BY ACCEPTING AND RULING ON APPELLEE'S UNSWORN
WRITTEN STATEMENT AS A TIMELY AND PROPERLY OBJECTION TO THE
MAGISTRATE'S DECISION, WHEN THE OBJECTION WAS NOT "SUPPORTED BY A
TRANSCRIPT OF ALL THE EVIDENCE SUBMITTED TO THE MAGISTRATE
RELEVANT TO THAT FINDING..." AS REQUIRED BY JUV. R. 40(D)(3)(b)(iii).
{¶10} "III. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, THEREBY VIOLATING APPELLANT'S PROCEDURAL DUE
PROCESS RIGHTS, WHEN IT RULED ON APPELLEE'S OBJECTION WITHOUT
FIRST REVIEWING A TRANSCRIPT OF THE EVIDENCE TO "...UNDERTAKE AN
Knox County, Case No. 15CA4 5
INDEPENDENT REVIEW AS TO THE OBJECTED MATTER..." AS REQUIRED BY
JUV. R. 40(D)(4)(d).
{¶11} "IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, THEREBY VIOLATING APPELLANT'S PROCEDURAL DUE
PROCESS RIGHTS, BY ACCEPTING APPELLEE'S UNSWORN WRITTEN
STATEMENT AS "ADDITIONAL EVIDENCE" UPON WHICH TO RULE ON
APPELLEE'S OBJECTION TO THE MAGISTRATE'S DECISION IN VIOLATION OF
JUV.R. 40(D)(4)(d).
{¶12} "V. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR, THEREBY VIOLATING APPELLANT'S PROCEDURAL DUE
PROCESS RIGHTS, BY FAILING TO CONSIDER THE RELEVANT FACTORS
REQUIRED OF R.C. 3109.04(F)(1) FOR A COURT TO DETERMINE THE BEST
INTEREST OF A CHILD WHEN ALLOCATING PARENTAL RIGHTS AND
RESPONSIBILITIES."
{¶13} A decision to modify, affirm, or reverse a magistrate’s decision lies within
the sound discretion of the trial court and should not be reversed on appeal absent an
abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989).
I.
{¶14} Appellant first argues that the trial court abused its discretion by accepting
and ruling on appellee’s letter as a timely and proper objection to the magistrate’s
decision. We disagree. Juvenile Rule 40(D)(3)(b)(ii) provides that “an objection to a
magistrate’s decision shall be specific and state with particularity all grounds for
objection.” In this case, appellee’s letter specifically objected to the portion of the
Knox County, Case No. 15CA4 6
magistrate’s decision naming appellant as the residential and legal parent, the portion of
the magistrate’s decision awarding child support to appellant, and the portion of the
magistrate’s decision requiring her to seek employment. Accordingly, appellant’s first
assignment of error is overruled.
IV.
{¶15} Appellant contends the trial court erred by accepting appellee's unsworn
statement as "additional evidence" upon which to rule on her objection to the
magistrate's decision. We disagree. Juv.R. 40(D)(4)(b) provides that "a court may
adopt or reject a magistrate's decision in whole or in part, with or without modification.
A court may hear a previously-referred matter, take additional evidence, or return a
matter to a magistrate." "The use of the word 'may' in the statute indicates the court has
discretion to decide whether to hear additional evidence after the parties submit
objections." Normandy Place Assn. v. Beyer, 2 Ohio St.3d 102 (1982); Wallace v.
Taylor, 5th Dist. Licking No. 00CA71, 2001 WL 17826554 (April 16, 2001). Accordingly,
when a trial court hears or does not hear additional evidence, we review this decision
under an abuse of discretion standard. Id.{¶16} This Court has previously found that when a trial court hears additional
evidence, ex parte materials may not be considered. Gerling & Associates, Inc. v. S&R
Services, Inc., 5th Dist. Tuscarawas No. 2008-CA-0054, 2009-Ohio-1897. However, in
this case, it is clear from appellant's response to appellee's objections that he had a
copy of the letter and attached materials. Further, appellant responded to appellee's
objections with his own unsworn statement and attached materials. Finally, the trial
Knox County, Case No. 15CA4 7
court did not state in its judgment entry that it was considering the unsworn statement
as "additional evidence." Appellant's fourth assignment of error is overruled.
II., III., V.
{¶17} Appellant's second, third, and fifth assignments of error are interrelated.
Appellant argues that since the trial court did not first review the transcript of the hearing
before the magistrate, the trial court did not undertake an independent review as to the
objected matters. Further, that the trial court failed to conduct a review of the factors in
R.C. 3109.04(F)(1) for a court to determine the best interest of a child when allocating
parental rights and responsibilities.
{¶18} Pursuant to Juvenile Rule 40(D)(4)(d), if timely objections to a magistrate's
decision are filed, the court "shall rule on those objections" and, in so ruling, "the court
shall undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the
law." We presume the trial court conducted an independent analysis in reviewing a
magistrate's decision and the party claiming the trial court did not do so bears the
burden of rebutting the presumption; simply because a trial court adopts a magistrate's
decision does not mean that the trial court failed to exercise independent judgment.
Williams v. Tumblin, 5th Dist. Coshocton No. 2014CA0013, 2014-Ohio-4365.
{¶19} Juvenile Rule 40(D)(3)(b)(iii) provides that "an objection to a factual
finding, whether or not specifically designated as a finding of fact * * * shall be
supported by a transcript of all the evidence submitted to the magistrate relevant to that
finding." In this case, at least a portion of appellee's objections to the magistrate's
decision with regard to custody, child support, and order of employment were questions
Knox County, Case No. 15CA4 8
of fact. Appellee did not file a transcript and the transcript was only filed for purposes of
appeal. Absent a transcript of proceedings, a trial court is limited to an examination of
the conclusions of law and recommendations in light of the accompanying findings of
fact, unless the trial court elects to hold further hearing. In the Matter of Bunting, 5th
Dist. Delaware No. 99CAF03012, 2000 WL 93674 (Jan. 11, 2000).
{¶20} In this case, the trial court did not state that it independently reviewed the
facts of the case. Based upon the decision of the trial court rejecting the magistrate's
decision, the trial court made factual determinations different from that of the magistrate
with regards to child support, order to seek work, and the determination of legal
custodian, without reviewing the transcript or holding a further hearing. Neither the trial
court nor the magistrate made any findings of fact or identified the applicable law with
regards to the best interest of the child. See Oliver v. Arras, 5th Dist. Tuscarawas No.
2001 AP 00 0105, 2002-Ohio-1590. Accordingly, upon the facts in this case, we find
appellant rebutted the presumption of independent analysis.
{¶21} Additionally, we find that the trial court failed to specifically rule on the
objections to the magistrate’s decision before modifying and rejecting this decision.
Juvenile Rule 40(D)(4)(d) requires the court to rule on objections to the magistrate’s
decision. We have previously held in Dorton v. Dorton, that, because of the mandatory
language utilized in the rule and the chronology of the rule’s requirements, a trial court
is required to specifically rule on objections to a magistrate’s decision before adopting,
rejecting, or modifying said decision. 5th Dist. Delaware No. 99CAF11061, 2000 WL
699666 (May 22, 2000). In this case, the judgment entry stated the trial court “reviewed
the magistrate’s decisions and objections thereto,” but failed to rule on said objections
Knox County, Case No. 15CA4 9
as the trial court failed to specifically state whether it is overruling or sustaining all, any,
or part of the objections, as required by the rule. Id.; O’Brien v. O’Brien, 5th Dist.
Delaware No. 02-CA-F-08-038, 2003-Ohio-2893.
{¶22} Therefore, we sustain appellant's Assignments of Error II., III., and V. and
remand this matter to the trial court to specifically rule on the magistrate's objections
and conduct an independent review of the magistrate's decision in accordance with
Juv.R. 40(D)(4)(d). In the event the trial court reviews objections with regards to factual
determinations, the trial court should consider the objections in accordance with the
transcript of the proceedings, which is now part of the record. See Frank v. Frank, 5th
Dist. Morrow No. CA-855, 1998 WL 351387 (June 5, 1998). Assignments of Error I. and
IV. are overruled.
By Gwin, P.J., and
Farmer, J., concur;
Hoffman, J., concurs in part;
dissents in part
Knox County, Case No. 15CA4 10
Hoffman, J., concurring in party and dissenting in part
{¶23} I concur in the majority's analysis and disposition of Appellant's first
assignment of error.
{¶24} I respectfully dissent from the majority's disposition of Appellant's fourth
assignment of error. While Appellant may have indeed had a copy of Appellee's letter
and attached material and responded reciprocally with his own unsworn statement and
attached materials, the letters clearly were ex-parte communications and not made
under oath nor subject to cross-examination. While the trial court may not have stated
in its judgment entry it considered the unsworn statement(s) and/or attachments as
"additional evidence", I find the fact trial court reversed the same magistrate's orders it
had previously approved on December 22, 2014, clearly demonstrates the trial court did
consider Appellee's letter and attachments.
{¶25} I would sustain Appellant's fourth assignment of error.
{¶26} Finally, while I agree with the majority's decision to sustain Appellant's
second, third and fifth assignments of error, I think it necessary to state my
disagreement with part of its analysis.
{¶27} Unlike the majority, I do not find the trial court made "factual
determinations" different from that of the magistrate. Because no transcript was
provided by Appellee with the objections, the trial court had to accept any factual
Knox County, Case No. 15CA4 11
findings made by the magistrate.1 However, the trial court is free to enter its own legal
conclusions after its independent review.
{¶28} The majority also finds the trial court failed to specifically state whether it
was sustaining or overruling Appellee's objections. While I concede the trial court may
not have used the terminology "sustained" or "overruled" as to each specific objection, I
find the fact it clearly and specifically reversed the magistrate's decision regarding each
of Appellee's three objections satisfies Juv.R. 40(D)(4)(d).
1 The magistrate's factual determinations were sparse. The magistrate's decision
consists almost entirely of orders of the court.
[Cite as Parrish v. Parrish, 2015-Ohio-4560.]