Bennett v. Bennett ( 2012 )


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  • [Cite as Bennett v. Bennett, 
    2012-Ohio-501
    .]
    IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
    :
    GEORGE BENNETT
    Plaintiff-Appellant                        :   C.A. CASE NO. 11 CA 52
    vs.                                            :    T.C. CASE NO. 09-DR-1176
    :    (Civil Appeal from
    JILL M. BENNETT                                     Common Pleas Court,
    Defendant-Appellee                         :   Domestic Relations Division)
    . . . . . . . . .
    O P I N I O N
    Rendered on the 10th day of February, 2012.
    . . . . . . . . .
    Douglas W. Geyer, Atty. Reg. No. 0022738, 451 Upper Valley Pike,
    Springfield, OH 45504
    Attorney for Plaintiff-Appellant
    Jon Paul Rion, Atty. Reg. No. 0067020, 130 W. Second Street, Suite
    2150, P.O. Box 1262, Dayton, OH 45402
    Attorney for Defendant-Appellee
    . . . . . . . . .
    GRADY, P.J.:
    {¶ 1} This is an appeal from an “Entry” of the domestic
    relations division of the court of common pleas filed in a divorce
    action that overruled objections to a magistrate’s decision
    granting a decree of divorce and approved and adopted the decision
    as the court’s final order in the action.                 We find that the decision
    2
    the court entered does not comply with Civ.R. 54(A), and is
    therefore not an order, judgment, or decree subject to appellate
    review.        The appeal will be dismissed and the case remanded for
    further proceedings.
    {¶ 2} George and Jill Bennett were married on July 10, 1999.
    Two children were born of the marriage.           George 1 commenced an
    action on a complaint for divorce on December 3, 2009.           (Dkt. 1.)
    Jill filed an answer and counterclaim for divorce on December
    4, 2009.       (Dkt. 11.)   The matter was referred to a magistrate for
    hearings and a decision on the claims for relief pleaded in the
    action.
    {¶ 3} Following hearings, the magistrate on January 5, 2011
    filed a comprehensive, fifty-one page decision in the form of a
    decree of divorce, which the court made its interim order.           (Dkt.
    64.)    Both parties filed objections to the decision.        George filed
    two objections concerning matters which are likewise the subject
    of this appeal.
    {¶ 4} George objected to the magistrate’s designation of Jill
    as the residential parent and legal custodian of the parties’ two
    minor children, instead of ordering shared parenting as George
    had    requested.       George   also   objected   to   the   magistrate’s
    1
    For clarity and convenience, the parties are identified
    by their first names.
    3
    determination that an award for personal injuries George was paid
    is marital property, and an order dividing the proceeds of that
    property with Jill accordingly.
    {¶ 5} On   June     28,   2011,   the   domestic    relations   court
    journalized an “Entry” addressing the magistrate’s decision and
    the parties’ objections.       (Dkt. 82.)    Concerning each objection,
    and without further elaboration, the court stated that, following
    an independent review, it disagreed with the contentions the
    objections involved and found the objections not well-taken, and
    therefore   that   the    objections    “shall   be     and   herewith   are
    OVERRULED.”     The court’s order concludes:
    {¶ 6} “IT IS FURTHER ORDERED that the Magistrate’s Decision
    filed in the within matter on January 5, 2011 is approved by this
    Court in its entirety and adopted by this Court as its Final
    Appealable Order.
    {¶ 7} “IT IS FURTHER ORDERED that all costs associated with
    this Objection shall be assessed to both parties equally.
    {¶ 8} “THIS IS A FINAL APPEALABLE ORDER.
    “___________/s/___________
    “Thomas J. Capper, Judge”
    {¶ 9} On July 18, 2011, George filed a notice of appeal from
    the Entry of June 28, 2011.        George’s brief on appeal presents
    the following two assignments of error:
    4
    FIRST ASSIGNMENT OF ERROR
    {¶ 10} “The order designating the Defendant/Appellee, JILL M.
    BENNETT, as the residential parent for the two minor children,
    adopted by the trial court, is based in an erroneous conclusion
    drawn by the magistrate which is not supported by the evidence
    presented during the various hearings held herein when the adoption
    of   either   of   the   shared   parenting   plans   submitted   by
    Plaintiff/Appellant, GEORGE F. BENNETT, JR. is, in fact, supported
    by the evidence presented during the various hearings and is truly
    in the best interest of the minor children.”
    SECOND ASSIGNMENT OF ERROR
    {¶ 11} “The trial court abused its discretion by adopting the
    magistrate’s decision finding against the manifest weight of the
    evidence that Plaintiff/Appellant, GEORGE BENNETT JR’s USAA
    personal injury settlement from an accident, which occurred while
    on duty as an officer of the Clark County Sheriff were marital
    property subject to division during the divorce.”
    {¶ 12} The two errors George assigns for our review present
    the same contentions that the court rejected when it overruled
    George’s objection to the magistrate’s decision in those same
    respects.
    {¶ 13} The appellate jurisdiction of the courts of appeals to
    review final judgments and orders of lower courts of record is
    5
    as may be provided by legislative enactment.              Section 3(B)(2),
    Article IV, Ohio Constitution.           That jurisdiction is limited to
    final orders, judgments, and decrees.             Id.; R.C. 2505.03(A).
    Final orders and judgments are defined by R.C. 2505.02.
    {¶ 14} “A   final    appealable     order   has     three       essential
    characteristics: it is final under Civil Rule 54(B); appealable
    under RC Ch. 2505; and meets the definition of an order, judgment,
    or   decree.      Each    of   these    characteristics    is     a   separate
    requirement, the absence of any of which will deprive the court
    of jurisdiction to hear the appeal.”          Sowald & Morganstern, Ohio
    Practice Domestic Relations Law (2009) 725, Section 32:1 (emphasis
    in original).
    {¶ 15} A judgment and decree of divorce is final under Civ.R.
    54(B) when it determines every claim presented by the parties to
    an action.     It is then appealable under R.C. 2505.02(B)(1) because
    the judgment and decree “affects a substantial right in an action
    that in effect determines the action and prevents a judgment.”
    It meets the definition of a judgment, order, or decree when it
    satisfies the definitional provisions of Civ.R. 54(A), which
    states:
    {¶ 16} “Definition; form.        ‘Judgment’ as used in these rules
    includes a decree and any order from which an appeal lies as provided
    in section 2505.02 of the Revised Code.            A judgment shall not
    6
    contain a recital of pleadings, the magistrate’s decision in a
    referred matter, or the record of prior proceedings.”               (Emphasis
    supplied.)
    {¶ 17} When no objections to a magistrate’s decision are filed,
    the court may adopt the decision as the court’s order “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 that instance the court performs no independent review of the
    merits of the magistrate’s decision, because the lack of objections
    waives the parties’ right to such a review, as well as the right
    to assign error on appeal concerning the court’s adoption of
    findings of fact or conclusions of law in the magistrate’s decision.
    Civ.R. 53(D)(3)(b)(iv).
    {¶ 18} When timely objections are instead filed, “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.”                     Civ.R.
    54(D)(4)(d).      That    review   is   the   equivalent   of   a    de   novo
    determination.     Klamfoth v. Klamfoth (April 9, 1996), Franklin
    App. No. 95APF10-1396.
    {¶ 19} “In addition to specifically ruling on objections, it
    has long been held that the trial court must issue a separate
    judgment     reflecting   its   own     decision.    A     judgment       which
    7
    incorporates the trial court’s own decision on objections to the
    magistrate’s decision meets the requirements of a final order under
    Civil Rule 54(A).[]
    {¶ 20} “Civil Rule 54(A) provides that ‘[a] judgment entry shall
    not contain a recital of pleadings, the magistrate’s decision in
    a referred matter, or the record of prior proceedings.’      A trial
    court must render its own separate judgment and may not simply
    state that it approves, adopts, or incorporates a magistrate’s
    decision.   A judgment entry is not sufficient if it merely recites
    that a recommendation/decision is approved and adopted thereby
    requiring the parties to refer to another document in order to
    determine exactly what their rights and obligations are.      It has
    been said that ‘. . . the judgment entry must be worded in such
    a manner that the parties can readily determine what is necessary
    to comply with the order of the court’ and need not resort to any
    other documents.[] Accordingly, for a judgment entry of the court
    to be a final appealable order, it must adopt, reject, or modify
    the magistrate’s decision and state, for identification purposes,
    the date the magistrate’s decision was filed.[] It should state
    the outcome and contain an order which states the relief granted
    so that the parties are able to determine their rights and
    obligations by referring solely to the judgment entry and should
    be a document separate from the magistrate’s decision.[]”     Sowald
    8
    & Morganstern, Ohio Practice Domestic Relations Law (2009) 701-02,
    Section 31:13 (internal footnotes omitted).
    {¶ 21} The “Entry” the court filed on June 28, 2011, from which
    this appeal is taken, fails to contain an order or orders which
    states the relief the court granted the parties concerning the
    matters in the magistrate’s decision to which George filed his
    two objections, in order that the parties could determine and be
    aware of their rights and obligations solely from the court’s
    judgment, separate from the magistrate’s decision to which the
    judgment also makes reference.       In that respect, the judgment
    improperly contained a “recital” of the magistrate’s decision as
    the basis of the relief the court purported to grant, contrary
    to Civ.R. 54(A).     In its form, therefore, the June 28, 2011 Entry
    from which this appeal is taken fails to meet the definition of
    a judgment, order, or decree.       Not being a judgment, order, or
    decree, the entry is not subject to appellate review.            R.C.
    2505.03(A).   We therefore lack jurisdiction to review the error
    assigned.
    {¶ 22} The appeal will be dismissed and the case remanded to
    the trial court for further proceedings on the objections the
    parties filed.     The parties should note that in the event the court
    rules on questions of fact in their objections by entering a
    judgment which is proper in its form for purposes of Civ.R. 54(A)
    9
    but nevertheless general in its character, an aggrieved party may
    request findings of fact and conclusions of law from the court
    pursuant to Civ.R. 52.    Findings and conclusions would greatly
    aid in narrowing the issues in any future appeal.
    FROELICH, J., concurs.
    HALL, J., dissents.
    Hall, J., dissenting:
    {¶ 23} I do not believe that the trial court is required to
    re-publish a 51-page Judgment Entry and Decree of Divorce that
    adopted the Magistrate’s decision and which was filed before timely
    objections were filed by both parties. The Entry overruling of
    the objections in their entirety, after an independent review is,
    in my view, a final order and I would address the merits of the
    appeal.
    . . . . . . . . .
    Copies mailed to:
    Douglas W. Geyer, Esq.
    Jon Paul Rion, Esq.
    Hon. Thomas J. Capper
    

Document Info

Docket Number: 11 CA 52

Judges: Grady

Filed Date: 2/10/2012

Precedential Status: Precedential

Modified Date: 4/17/2021