Hatem v. Hatem ( 2011 )

[Cite as Hatem v. Hatem, 2011-Ohio-3216.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
THERESA A. HATEM : John W. Wise, P.J.
: Julie A. Edwards, J.
Plaintiff-Appellant : Patricia A. Delaney, J.
:
-vs- : Case No. 10CAF090070
:
:
JEFF G. HATEM : OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Delaware County
Court of Common Pleas, Domestic
Relations Division, Case No. 04-DR-
A-388-7067706973
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 27, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
LUTHER J. MILLS MEREDITH SNYDER
61 N. Sandusky Street 572 East Rich Street
Delaware, Ohio 43015 Columbus, Ohio 43215
[Cite as Hatem v. Hatem, 2011-Ohio-3216.]
Edwards, J.
{¶1} Appellant, Theresa A. Hatem, appeals a judgment of the Delaware County
Common Pleas Court overruling her motion to recuse Magistrate Marcia Blackburn from
her case. Appellee is Jeff Hatem.
STATEMENT OF FACTS AND CASE
{¶2} The parties were divorced in 2005. Appellant filed a motion for
reallocation of parental rights and responsibilities (which in the body of the motion was
in fact a request for modification or termination of support) and a show cause motion on
October 21, 2009. Appellee filed a motion for an increase in child support on March 19,
2010, and a motion for attorney fees on June 7, 2010. Appellant filed a motion for
attorney fees on June 11, 2010.
{¶3} The case was set for a hearing on the pending motions at 8:30 a.m. on
June 16, 2010. The morning of the hearing, Luther Mills, counsel for appellant, called
the court and asked for the hearing to start at 10:00 a.m. due to a health problem he
was experiencing. The magistrate agreed to start the hearing at 9:00, but would not
continue the hearing until 10:00 a.m. The magistrate noted that she understood
counsel has continuing health problems, but in the past he has sent someone from his
office to take his place.
{¶4} The hearing began at 9:00 with appellant unrepresented by counsel.
During the hearing a paralegal from appellant’s counsel’s office brought the trial
notebook to the courtroom. A request to allow the paralegal to represent appellant was
denied, as the paralegal is not licensed to practice law. Because appellant was
unrepresented, the magistrate proceeded by swearing in both parties and asking
Delaware County App. Case No. 10CAF090070 3
questions of the parties herself rather than conducting a formal trial. The magistrate
heard the motion for increased child support but continued the show cause motion. The
parties had not reviewed the numerous fees and medical bills involved in the show
cause hearing to determine what appellee had paid and what remained unpaid. The
court therefore ordered the parties to exchange information about what has been paid,
what has not been paid and what has been paid by insurance before the next hearing.
{¶5} The magistrate issued a decision concerning the motion to increase child
support on June 16, 2010. Appellant filed objections to this decision on June 25, 2010.
{¶6} On August 3, 2010, appellant filed a motion to recuse or disqualify
Magistrate Blackburn. Counsel argued in the motion that the magistrate’s treatment of
him has been disrespectful and abusive and has risen to the level of impermissible bias
in violation the Ohio Judicial Code of Conduct Cannon 3(E).
{¶7} Attached to the motion was an affidavit of appellant in which she
expressed her frustration at being forced to conduct the hearing without counsel and her
feelings that the magistrate was blatantly prejudiced against her, and stated her opinion
that “Magistrate Blackburn is unable to preside in any court and provide parties with a
fair and impartial decision.” Stacy Mills, the daughter of Luther Mills, stated by affidavit
that she met Magistrate Blackburn at a social event in August of 2004, and the
magistrate behaved “in an unprofessional manner by indicating that she did not like
Luther Mills.” The affidavit further stated that “it was obvious” that the magistrate did not
Delaware County App. Case No. 10CAF090070 4
approve of Mills, believed his presence in her courtroom was an irritation and did not
treat Mills with the respect due a fellow officer of the court.1
{¶8} In response, Magistrate Blackburn filed an affidavit stating that she has no
prejudice against Attorney Mills and when given adequate notice, has continued cases
due to his health condition. The affidavit stated that Attorney Mills called the court prior
to the 8:30 a.m. hearing stating that he was having a bad day and would not be able to
come to court until 10:00 a.m.; however, counsel for appellee was present with her
client and could not wait until 10:00 a.m. because she had another hearing. The
magistrate waited until 9:00 a.m. to start the hearing. Attorney Mills did not appear and
had no further contact with the court by telephone, and the magistrate proceeded with
the hearing.
{¶9} The trial court overruled the motion to disqualify the magistrate on August
9, 2010, finding that upon review of the transcript of the hearing, the court found no
demonstration of bias or prejudice on the part of the magistrate. The court stated that
any abuse of discretion in failing to continue the hearing was another issue for another
day.
{¶10} Appellant assigns one error on appeal:
{¶11} “THE TRIAL COURT ERRED IN DENYING MOTHER-APPELLANT
COUNSEL’S REQUEST TO HAVE MAGISTRATE BLACKBURN REMOVED FROM
HEARING THE INSTANT CASE OR OTHER CASES IN WHICH THIS COUNSEL
APPEARS.”
1
Counsel has attached his own affidavit to the brief filed in this Court. However, that affidavit bears no
file stamp and was notarized on December 30, 2010, more than four months after the trial court issued a
decision in this matter, and is not therefore properly before this Court on appeal.
Delaware County App. Case No. 10CAF090070 5
{¶12} Civ. R. 53(D)(6) provides that disqualification of a magistrate for bias or
other cause is within the discretion of the court and may be sought by motion filed with
the court. See also In re Disqualification of Wilson (1996), 77 Ohio St.3d 1250, 1251,
674 N.E.2d 360.
{¶13} Appellant has not demonstrated that the court abused its discretion in the
instant case. The motion was filed after the hearing was complete and based primarily
on the magistrate’s refusal to grant a continuance due to counsel’s health issues. As
noted by the trial court, whether the magistrate’s ruling on a continuance was improper
is the subject of objections to the magistrate’s decision. The transcript does not reflect
bias on the part of the magistrate. The magistrate did express her concern over the fact
that the parties in this case continued to come back to court repeatedly to handle every
issue that arose between them and placed their teenage daughter in the middle of their
problems, when their money could be better be spent on their children and a teenage
girl has enough problems without being asked to testify against one of her parents. Tr.
46-47, 49. However, the transcript does not reflect that the magistrate was biased
against counsel for appellant. The magistrate noted for the record that the case had
been pending from October of 2009, and counsel could have arranged for someone to
handle the case in his absence as he has done in the past. Because appellant was not
represented, the magistrate proceeded by asking questions herself and going forward in
that manner to get the information she needed to rule on the pending child support
motion. Appellant was censured several times by the magistrate because she
attempted to argue with counsel for appellee when counsel was attempting to talk to the
court, and appellant tried to bring up issues that were not relevant to the issue pending
Delaware County App. Case No. 10CAF090070 6
before the court, but the magistrate’s exercise of control over the manner in which the
hearing would proceed does not rise to the level of bias or prejudice against appellant or
her counsel. The court did not abuse its discretion in overruling the motion to remove
the magistrate.
{¶14} The assignment of error is overruled.
{¶15} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Edwards, J.
Wise, P.J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0505
[Cite as Hatem v. Hatem, 2011-Ohio-3216.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THERESA A. HATEM :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
JEFF G. HATEM :
:
Defendant-Appellee : CASE NO. 10CAF090070
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas, Domestic Relations
Division, is affirmed. Costs assessed to appellant.
_________________________________
_________________________________
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JUDGES