Pahl v. Haugh , 2013 Ohio 4106 ( 2013 )

[Cite as Pahl v. Haugh, 2013-Ohio-4106.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
BRENT J. PAHL,
PLAINTIFF-APPELLANT, CASE NO. 5-12-26
v.
ELIZABETH HAUGH, OPINION
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 20940287
Judgment Reversed and Cause Remanded
Date of Decision: September 23, 2013
APPEARANCES:
John C. Filkins for Appellant
Elizabeth K. Haugh, Appellee
Case No. 5-12-26
WILLAMOWSKI, J.
{¶1} Plaintiff-Appellant, Brent J. Pahl, (“Brent” or “Father”), appeals the
judgment of the Hancock County Court of Common Pleas, Juvenile Division,
denying his motion for reallocation of parental rights and responsibilities, in which
he claimed that it was no longer in the best interest of the child for the Defendant-
Appellee, Elizabeth K. Haugh (“Elizabeth” or “Mother”) to continue as the
residential parent of the parties’ daughter. On appeal, Brent contends that the trial
court erred in denying his motion to name him as the residential parent and when
it overruled his objections to the Magistrate’s Decision before the court reporter
had the opportunity to transcribe and file the trial transcripts. For the reasons set
forth below, the judgment is reversed and remanded.
{¶2} Brent and Elizabeth are the parents of a young daughter, Vaeda, who
was born in September 2008. The parties were never married, although they had
been in a long-term relationship and had resided together in Brent’s home on
Center Street in Findlay, Ohio, along with Elizabeth’s daughter from a previous
relationship, Brooklyn. Brent was the named the father of Vaeda on the birth
certificate.
{¶3} In August of 2009, Brent filed a complaint to establish parentage.
Shortly thereafter, Elizabeth moved out of Brent’s home, along with her two
daughters. On September 23, 2009, Elizabeth filed a motion for temporary orders,
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requesting that she be designated the residential parent and requesting that Brent
pay child support. Due to the animosity between the parties after their separation,
the trial court ordered both parties to adhere to mutual restraining orders. After a
hearing, the magistrate designated Elizabeth as the temporary residential parent,
granted Brent parenting time, and ordered him to pay child support. The trial
court’s Temporary Orders on this matter were filed February 9, 2010. Brent also
filed a motion to be designated the residential parent and legal custodian of Vaeda.
{¶4} After a two-day hearing, the magistrate issued her decision on the
final orders in March of 2010. The magistrate recommended that it was in the best
interest of the parties' child for Elizabeth to be designated the residential parent
and legal custodian and for Brent to be given regular visitation time as established
in the temporary orders. Brent was also ordered to pay child support in the
amount of $290.13 per month, and provisions for visitation and insurance were
designated. Brent’s objections to the magistrate's decision were overruled and the
trial court adopted and incorporated the magistrate’s decision in its September 7,
2010 Judgment Entry.
{¶5} Brent appealed the juvenile court’s decision. See Pahl v. Haugh, 3d
Dist. No. 5-10-27, 2011-Ohio-1302 (“Paul v. Haugh I”). In that first appeal, Brent
asserted that the trial court erred when it failed to designate him as the residential
parent. He claimed that the trial court overlooked the fact that he was Vaeda’s
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primary caretaker during her first year of life and he also alleged that testimony
before the trial court demonstrated that Elizabeth had a history of depression and
alcohol abuse which made her an unsuitable choice to be named Vaeda’s
residential parent and legal custodian. Id. at ¶ 11. Brent also raised errors
concerning the amount of parenting time he was given and with the child support
calculations. Id. at ¶ 10.
{¶6} Upon review, this Court found that the record contained competent,
credible evidence to support the juvenile court’s decision. Id. at ¶ 24. Our review
of the testimony and evidence in the record at that time indicated the following.
Of particular importance to the magistrate was consideration of
the parent more likely to honor and facilitate court-approved
parenting time rights or visitation or companionship rights.
Upon observing the demeanor and attitude of both parties in
court, as well as each party’s express statements regarding the
other’s parenting abilities, the magistrate concluded that of the
two, Elizabeth would be more likely to honor and facilitate
visitation rights approved by the court. Specifically, the
magistrate noted that from “[Brent’s] affect in Court it should
be found that he has anger issues.” * * *
With regard to the allocation of parental rights, the testimony
demonstrated that Brent was initially steadfast in his position
that Elizabeth should have no contact with Vaeda and that he
would discourage Vaeda’s relationship with Elizabeth until she
was at least no longer an infant. However, after being further
questioned on this issue, Brent begrudgingly conceded that he
would permit Elizabeth to have contact with Vaeda, if he was
ordered to by the court.
* * * Brent made allegations that Vaeda was not safe in
Elizabeth’s care. However, Brent admitted that he had no
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contact with Elizabeth since she moved out of his house months
earlier due to the parties’ use of Elizabeth’s grandmother as the
go-between for exchanging custody of Vaeda, which also served
to alleviate the necessity of having to interact with one another.
Accordingly, Brent acknowledged that he had no personal
knowledge of Vaeda’s situation under Elizabeth’s care since the
separation—i.e. whether her new home was safe or whether
Vaeda’s needs were adequately being met by Elizabeth. * * *
To the contrary, Elizabeth’s testimony demonstrated that, even
though she had no contact with Brent, she believed it would be
in Vaeda’s best interest to have both parents involved in her life.
Elizabeth admitted that she believed Brent is a good father to
Vaeda, however, her primary concern with Brent as a parent
were his “states of rage” and “anger issues.”
Id. at ¶¶ 15-19.
{¶7} In Paul v. Haugh I, Brent criticized Elizabeth regarding what he
characterized as her “infidelities” and “belligerent” behavior, which he attributed
to her alleged chronic alcohol abuse. Id. at ¶ 16. However, Elizabeth denied
having a drinking problem and being unfaithful to Brent. Id. At that time, we
found that “the record is devoid of any credible evidence substantiating Brent’s
allegations” and we affirmed the decision of the juvenile court naming Elizabeth
as the custodial and residential parent. Id.
{¶8} Subsequently, on May 20, 2011, Brent filed a pro se motion to change
custody, visitation, and support, alleging that Elizabeth was in the Hancock
County jail “pending trial and conviction of seven charges since the last custody
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hearing.”1 After several continuances, a three-day hearing on all pending motions
was held on December 20, 2011, January 18, 2012, and January 26, 2012.
{¶9} At trial, Brent offered exhibits and the testimony of numerous
witnesses to demonstrate that there had been a significant change of circumstances
and that it would be in the child’s best interest for Brent to be named the
residential parent. The testimony showed that since the trial court’s last decision
in September 2010, the following had occurred: Elizabeth had voluntarily quit her
previous job (paying $14.13/hour) and now worked at Sears (for $7.40 per hour);
she had moved three or four times and was currently living with her boyfriend,
Steve Wellman; that the police had been called numerous times for incidents
involving domestic violence and intoxication; that Elizabeth had been convicted of
three OVI offenses and one count of child endangerment; that she had continued
to drive after her license had been suspended; that she had been ordered to attend
rehabilitation and had been sentenced to jail; and that she had repeatedly violated
the terms of her probation.
{¶10} At the hearings, four police officers testified that they had responded
to calls of domestic violence, intoxication, theft, and other issues involving
Elizabeth and her boyfriend, Steven Wellman (“Wellman” or “boyfriend”). Since
the last magistrate’s decision was issued in this case, on March 24, 2010, there
1
Brent eventually retained his prior counsel to represent him throughout the remainder of the proceedings
and this appeal. Both parties were represented by their original attorneys during the hearings in Juvenile
Court and during the proceedings below.
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was evidence in the record that Elizabeth had contact with law enforcement
officers on June 27, 2010, July 31, 2010, August 1, 2010, November 25, 2010,
December 11, 2010, December 28, 2010, April 10, 2011, April 28, 2011, July 28,
2011, August 22, 2011, and September 22, 2011. The four officers provided
testimony concerning the many of the incidents, including the following.
{¶11} Officer Shane Leeth testified that on July 31, 2010, Wellman told
him that Elizabeth had taken his vehicle without permission, and that she was
intoxicated. Tr. 19-23. The police report indicated Elizabeth was currently under
an Administrative License Suspension (“ALS”). Pl. Ex. A. Elizabeth told the
officer that Wellman had struck her in the back while the two of them were in a
vehicle. Id.
{¶12} Officer Marsha Hill testified that on November 25, 2010, Elizabeth’s
mother called law enforcement because she was worried about Elizabeth’s safety
as a result of concerns over alleged suicide threats. Tr. 89. The officer took
Elizabeth to Blanchard Valley Hospital for prescreening to check her mental state.
Tr. 95-97.
{¶13} Deputy Shane Heckman testified that on April 28, 2011, Wellman
called the police because Elizabeth had arrived at his house at 7:45 a.m., extremely
intoxicated and refused to leave his home (they weren’t living together at that
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time).2 Pl. Ex. B. Wellman reported that when he attempted to speak with her,
she became irate and started screaming at him and attempted to punch and kick
him. Id. The officer observed Elizabeth screaming at Wellman and his friend, and
observed that Elizabeth was intoxicated and very irate and “appeared to have a
hard time standing up and fell back to the couch several times.” Id. Elizabeth
reported that Wellman grabbed her by the hair and ripped her off the couch. The
officer also observed that Elizabeth’s face was swollen, which she said was from a
prior incident with Wellman. Id. Elizabeth denied she had been drinking even
though she “was very belligerent throughout the conversation speaking in a loud
slurred speech.” Id. The police officer’s report further indicated that, at the time
of this incident, Elizabeth was on house arrest at her own residence, and that she
was under orders to not consume alcoholic beverages. Id.
{¶14} Deputy Barry Turner testified that on August 22, 2011, police
responded to a 9-1-1 hang-up at Wellman’s residence. Elizabeth stated that she
had moved into his residence about two months ago, and over the past month the
two had been having verbal arguments. She reported that she was trying to finish
painting a bedroom upstairs for her children because “she has to go to jail for sixty
days soon from a past incident and her children will be staying with [Wellman].”
Pl. Ex. D. Elizabeth said that nothing “physical” happened between the two of
2
When the officer asked Wellman if they were boyfriend/girlfriend, the officer’s report stated that “Steve
said no, they ‘just fuck sometimes.’ * * * Steve said he is not Elizabeth’s boyfriend because he thinks she is
crazy. Steve said he has been ‘fucking’ Elizabeth since October of last year.” (Pl. Ex. B)
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them, “just the normal pushing that always happens between the two of them.” Id.
When the police officer inquired whether she was sure she wanted to stay with
Wellman, “she stated that she has to because she will be going to jail soon and her
children need to stay there.” Id. When the officer inquired whether she had
family that could take care of her children while she was away, “she stated that she
did not.” Id.
{¶15} Upon cross examination, Elizabeth’s attorney did establish that
Vaeda was not present at the time that the police were called for most of the above
incidents, except for one time. That incident occurred on August 1, 2010, when
Elizabeth called the police as a result of her claim that Wellman was threatening to
“beat her ass.” Tr. 84, Pl. Ex. F. When police arrived, Wellman was intoxicated
and he represented that Elizabeth had assaulted him. Ex. F. When the officer
spoke with “an intoxicated Elizabeth,” she stated that Wellman showed up at her
residence and was screaming in her windows. “She advised [that] he woke and
scared both of her children.” Id.
{¶16} Brent testified that he was 41 years old, he had lived in his home at
508 Center Street for twenty years, and that he provided a good environment for
Vaeda. Tr. 319. Brent’s home is next door to Donna Krugh, who is Elizabeth’s
grandmother and Vaeda’s great-grandmother (“the Grandmother”). The
Grandmother provides considerable baby-sitting services for Elizabeth, and
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watches Vaeda when Elizabeth is working. Visitation exchanges for Vaeda also
take place at the Grandmother’s home, and whatever communication that takes
place between the parties occurs via the Grandmother, as Brent and Elizabeth do
not speak to each other directly. Brent testified that he does have regular
interaction with the Grandmother and discusses what Vaeda has done during the
day, what she’s eaten, what she’s played with, how she’s feeling, etc. Tr. 345-46.
{¶17} Brent acknowledged that he does not communicate with Elizabeth,
but claims that he has concerns about speaking with her or being in her presence
because he claims that she filed a false police report against him during the
previous custody proceedings and obtained a CPO, and feared she might do so
again. Tr. 347-48. He claims she lied and told police that he broke into her home
and beat her, although charges were never filed and the CPO was dismissed. Tr.
348. Brent also testified that Elizabeth stole his dog twice, and tried to cover up
starving his dog. Tr. 354, 359. Elizabeth was convicted of petty theft and
obstruction of justice in relation to the incident with the dog. Tr. 359-61. He
testified that he felt it was best to limit his contact with her because he did not
know what she would do in the future, and he was afraid of being “set up.” Tr.
364. However, he testified that he wouldn’t have a problem communicating
directly with Elizabeth concerning matters relating to Vaeda’s welfare in the
future “after Vaeda’s placed in my home safely.” Tr. 390-94.
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{¶18} Brent further testified he had concerns about Vaeda’s safety when
she is with Elizabeth “because she gets intoxicated to a level in which she does not
know what she is doing.” Tr. 372. He has seen her drive with the children in the
car when she should not have been driving because of the license suspensions.
Brent worries about Vaeda being in a car with Elizabeth and fears that she will
“get my kid killed and not even know she did it.” Tr. 371.
{¶19} Brent stated that he has seldom missed a visitation with Vaeda,
except when he was called to work. However, his employment and work schedule
had changed since the previous visitation orders were established. He testified
that his mother would be available to watch Vaeda when he worked, if he were to
have custody. Besides his mother, he also has his father and stepmother, sister,
stepbrother and lots of friends in the area, and they all have good relationships
with Vaeda and help him out when needed.
{¶20} On cross examination, Brent admitted that if he were granted custody
of Vaeda, he would prefer that the court would order visitation that would be “as
limited as possible,” i.e., “supervised.” Tr. 400-402. However, he denied that he
himself would limit Vaeda’s time with Elizabeth, and claimed that he would be
better able to facilitate a relation between Vaeda and Elizabeth if he had custody.
Tr. 381.
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{¶21} Brent testified that he loves Vaeda and would be the better parent
because there was not a safety issue with Vaeda being in his home. Tr. 381.
“She’s my friend. She’s my child. I mean, it’s that easy. We play. We run
around the table. She rides a big wheel in the basement. * * * I’d love to be able
to get her in gymnastics. I’ve got a lot of plans for her.” Id.
{¶22} Brent also testified that he had a good relationship with Vaeda’s half-
sister Brooklyn, as she had lived in his home for six years and he would continue
to foster that relationship with Vaeda and Brooklyn. Tr. 379. He testified that
Brooklyn is often at the Grandmother’s home and he asks her all the time if she
can come over; that she was included in going to the swimming pool every
weekend during the summer; that he gives Brooklyn birthday and Christmas
presents; and that he would make sure that the girls had plenty of time to visit and
see each other if he was awarded custody. Tr. 380.
{¶23} When Elizabeth testified, she acknowledged that she had been
arrested three times for OVI and that she had a problem with alcohol addiction.
Tr. 257, 529. She confirmed that she pled guilty to child endangerment for driving
while intoxicated with the children in the car. Tr. 257. However, she testified that
she had attended rehab at St. Rita’s, she attended counseling and AA as part of her
probation conditions, and that she had not had a drink since April 28, 2011. (Jan.
26, 2012, Tr. 529.
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{¶24} Elizabeth also acknowledged the incidents in the police reports,
including the most recent on September 22, 2011, when she called law
enforcement because Wellman was drunk again, and advised them that he was
mad, screaming, throwing things and had her on the floor by the throat again, and
that she had to crawl out of the living room window in order to get away. Tr. 265.
She also advised the police that Wellman had a stolen handgun located at the
residence. Id. Elizabeth still testified that she believed it was in the best interest
of the children that they reside with her at Wellman’s residence “as long as he’s
sober.” Tr. 270. However, when questioned as to whether “there had been time
periods in your relationship with Mr. Wellman where you felt that he was sober,”
Elizabeth’s reply was, “Not really.” Id.
{¶25} She also admitted that she had not told Brent that she was in jail and
rehab, nor did she offer him the opportunity to take care of Vaeda during that time.
She acknowledged that she still had sixty-days of jail time to serve in Marion, but
she believed that she might be able to serve this time at home with an ankle
monitor. Tr. 533. She testified that she would be opposed to Vaeda residing
primarily with her father if she did have to serve her time in the Marion jail. Tr.
279. Elizabeth claimed that Brent called her names in front of Vaeda and she was
afraid he would say bad things about her, although this was denied by Brent. Tr.
510, 534, 592.
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{¶26} Elizabeth testified that she was a good mother, and she showed
pictures of Vaeda’s and Brooklyn’s decorated room in Wellman’s home, and
discussed how she often does learning and other play activities with Vaeda. She
testified, “That little girl is my life. We do everything together.”
{¶27} Elizabeth testified that, although she has concerns about Brent’s
parenting, she does take steps to facilitate Brent’s relationship with Vaeda. Tr.
539. She described how she took Vaeda shopping so that she could buy a
Christmas present for her father. Tr. 540. She further testified:
I do all kinds of things. She talks about her dad all the time. All
the time. Everything is my daddy this, my daddy that. I don’t
say things about him. I encourage her to continue with her dad.
I think they need to have a strong, healthy relationship.
Tr. 539.
{¶28} Steve Wellman testified that he met Elizabeth in 2010, and that she
and her two children had lived with him since the latter part of 2011, right after
she was released from jail and rehabilitation. Tr. 191-192. When questioned
about the numerous police calls, many of which were made by Wellman, he had
difficulty remembering. He did acknowledge that he had charges “pending”
against him from a September 22, 2011, incident in which it was alleged he had a
Python 357 Magnum in the home, but that the matter was “being disputed at this
point” and was “not resolved.” Tr. 206-207. Wellman acknowledged that he was
an alcoholic, and that he had consumed alcohol within the past 12 months. Tr.
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209. However, he testified that he was not currently drinking, although he was not
in any program or counseling for his alcoholism. Tr. 230. He claims that
Elizabeth had given him an ultimatum of no more drinking. Tr. 236.
{¶29} Wellman also stated that he had not observed Elizabeth consume
alcohol in the past 12 months. Dec. 20, 2011, Tr. 209. He explains the police
reports he made that she was intoxicated were the result of him being a “jerk” and
being “vindictive” and “trying to get her into trouble.” Id. He claimed that he lied
to law enforcement about her intoxication in order to get her into trouble. Id. at
210.
{¶30} Wellman denied that he was aware that she still had to serve 60 days
in jail or that she wanted him to watch the children for her during this time. Tr.
215. He testified that Elizabeth was a good mother, that she spent time playing
with and teaching her daughters, and that the daughters seemed to be happy and to
be doing well.
{¶31} The magistrate’s decision was filed on March 2, 2012. The
magistrate found that there had been a change of circumstances that had a material
effect upon the child, but recommended that it was not in the child’s best interests
to grant Brent’s motion and name him as the custodial parent.
The Court should find that it is not in the best interests of the
child to grant [Brent’s] request to grant him custody of Vaeda.
[Elizabeth’s] bad parenting is intermittent while [Brent’s] bad
parenting is consistent and ongoing. Furthermore, [Elizabeth]
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will continue to allow a relationship to exist between [Brent] and
Vaeda. [Brent’s] conduct throughout this case and while in the
courtroom indicate that he will continue to allow his hatred for
[Elizabeth] to impede Vaeda’s relationship with her mother. To
grant [Brent’s] request would be to essentially terminate
Vaeda’s relationship with her mother. Accordingly, the
Magistrate cannot find that it would be in the child’s best
interests to grant [Brent’s] request for custody.
Mag. Dec., 13. The magistrate also recommended denying Brent’s motions to
change visitation and modify child support.
{¶32} Brent filed timely preliminary objections, and on April 11, 2012, the
trial court granted his leave for permission for an extension of time to file
supplemental objections after the transcript of proceedings had been filed.
However, Brent did not timely request an extension of time in which to file the
transcript and the trial court dismissed his objections on April 17, 2012, after
Elizabeth had filed a motion to dismiss the objections on April 16. The trial court
denied his motion for reconsideration and it denied his June 29, 2012 “Motion to
Set Aside the Judgment.”3 Although Brent later filed the transcripts on June 15,
the trial court did not consider them, nor did it rule on his supplemental objections
which were filed 14 days after the transcripts pursuant to the trial court’s April 11
amended order. (See further detailed discussion of this matter in relation to the
second assignment of error, below.)
3
Brent’s motion was captioned “Motion to Set Aside the Judgment,” even though he was referring to an
interlocutory order.
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{¶33} On August 6, 2012, the trial court issued a one-page judgment entry
and orders stating that it approved, adopted and incorporated the findings of fact
and conclusions of law contained in the magistrate’s decision in full, and ordered
and decreed that Brent’s request for custody was denied, along with his motion to
change visitation and child support.
{¶34} It is from this decision that Brent raises this appeal. Elizabeth, who
is now pro se, did not file an appellee’s brief. Pursuant to App.R. 18(C), “[i]f an
appellee fails to file the appellee’s brief, * * * the appellee will not be heard at
oral argument except by permission of the court * * * and in determining the
appeal, the court may accept the appellant’s statement of the facts and issues as
correct and reverse the judgment if appellant’s brief reasonably appears to sustain
such action.”
{¶35} Brent presents the following two assignments of error for our review.
First Assignment of Error
The trial court erred as a result of its failure to identify [the
Father] as the residential parent.
Second Assignment of Error
The trial court erred as a result of its refusal to consider [the
Father’s] objections to the Magistrate’s Decision after [the
Father] paid for and filed the transcript of proceedings.
{¶36} In order to facilitate our review and discussion, we elect to address
the assignments of error in reverse order.
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Second Assignment of Error
{¶37} In the second assignment of error, Brent maintains that the trial court
erred when it summarily dismissed his preliminary objections without actually
ruling on them. He argues that the trial court erred when it did not allow him a
reasonable opportunity to obtain the transcripts, or to respond to Elizabeth’s
motion to dismiss. He contends that the trial court abused its discretion when it
denied him an extension of time in order to have the transcripts prepared and to
reconsider its decision to dismiss his objections when it denied his “Motion to Set
Aside Judgment.”
{¶38} The magistrate filed her decision on March 2, 2012. Twelve days
later, on March 14th, Brent’s attorney timely filed Preliminary Objections to the
Magistrate’s Decision,4 along with a Motion for Extension of Time to File
Supplemental Objections, stating that he needed time to obtain the transcript of
proceedings for the three days of hearings, and that these transcripts were
necessary in order to present his objections. On April 11, 2012, the trial court
granted the motion.5
4
The Preliminary Objections merely stated that (1) the Magistrate’s Decision was against the weight of the
evidence; (2) the Magistrate failed to properly apply to the law to the facts as established; (3) the
Magistrate erred as a result of not designating Brent as the residential parent; and (4) the Magistrate erred
in ordering Brent to pay child support.
5
This was actually an “Amended” Judgment Entry. The first judgment entry, signed and filed by the trial
court on March 19, 2012, stated that “Plaintiff’s Attorney shall have a period of fourteen (14) days in which
to file his supplemental objections * * *.” The Amended J.E. stated that “Plaintiff’s Attorney shall have a
period of fourteen (14) days after the filing of the transcripts in which to file his supplemental objections *
* *.” (Emphasis added.)
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{¶39} Six days later, on April 17, 2012, the trial court filed a judgment
entry dismissing Brent’s objections due to his failure to file a transcript within the
“40 day period” as required by Juv.R. 40 and the local Hancock County Juvenile
Court Rule 28(D)(2). Apr. 17, 2012 J.E. This judgment entry was filed in
response to Elizabeth’s “Motion to Dismiss” filed the on the previous day.
Elizabeth’s motion claimed that Brent’s objections were not timely prepared and
that the transcript was not timely prepared and he had missed the extension
deadline. In her Motion to Dismiss, Elizabeth’s attorney represented that the court
reporter had “returned the disk to the court because she was not paid.” Apr. 16,
2012 Mtn. to Dismiss Objections. The trial court immediately granted Elizabeth’s
motion, without allowing Brent an opportunity to respond. The trial court stated
that “[t]he Plaintiff, although granted an extension to file objections, has never
requested nor been granted a request to extend the time to file a transcript. The
time requirement has run and no transcript has been filed in this case.” Apr. 17,
2012 J.E.
{¶40} On April 26, 2012, Brent’s attorney filed a Motion for Extension of
Time to Complete Transcription and for Reconsideration of the April 17, 2012,
Judgment Entry Dismissing his objections. In his motion, Brent’s attorney stated
that Elizabeth’s motion “was not accurate in its depiction of the circumstances
surrounding the preparation of the transcript,” that Brent wished to pursue his
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objections, and that his request for an additional 40 days in which to complete the
transcription would not prejudice the Defendant. Attached to, and incorporated
into the motion was the affidavit of the court reporter stating that she had been
contacted by Brent’s counsel on March 12th, and she provided him an estimate on
March 14th. She did return the CDs to the court after giving her estimate, but that
was her usual practice. On April 4th Brent’s counsel contacted her and indicated
that the deposit for the transcription would be delivered on April 6, which it was.
On April 11, she received the court order indicating that Brent’s attorney had 14
days “after” the filing of the transcript to file objections, and was told that she was
to proceed with the transcript as earlier discussed.6 Her affidavit stated that she
needed additional time to prepare the transcript due to the length of the hearings
and a pending permanent custody appeal transcript that she was preparing. Apr.
27, 2012, Plaintiff’s Mtn.
{¶41} On May 4, 2012, the trial court denied the motion for extension of
time and for reconsideration. The trial court stated that:
[Brent], although granted an extension to file objections, has
never been granted a request to extend the time to file a
transcript. Up until the point of the filing of his motion on April
27, 2012, Plaintiff never requested an extension of the transcript
filing deadline. The time requirement has run and no transcript
has been filed in this case.
6
The court reporter’s affidavit also stated that when she received the original March 19th order, she called
the attorney’s office and indicated that she could not have the transcript completed “in 14 days” due to the
length of the hearings and a pending permanent custody appeal transcript that she was preparing.
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May 4, 2012 J.E.
{¶42} On June 15, 2012, the three-volumes of transcripts were filed for the
record. On June 29, 2012, Brent filed his detailed supplemental objections,
pursuant to the Court’s prior order granting him 14 days from the filing of the
transcripts. Brent simultaneously filed a motion asking the trial court to set aside
the judgment of May 4, 2012; to approve the filing of the transcripts; and, to rule
upon the supplemental objections. Brent stated that his motion to set aside the
May 4, 2012 Judgment Entry “was predicated upon Civ.R. 60(B),” whereupon a
court “may relieve a party or his legal representative from a final judgment, order
or proceeding for the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; * * *.” He stated that the trial court’s dismissal was based upon
an inaccurate depiction of the circumstances surrounding the preparation of the
transcript presented by Elizabeth’s counsel, and that the court reporter’s affidavit
clearly established that he was proceeding with the transcription of the hearing in
order to file his supplemental objections as to why the trial court erred in naming
Elizabeth as the residential and custodial parent.
{¶43} On July 19, 2012, the trial court denied Brent’s motion to set aside
the judgment denying an extension of time. In its decision, the trial court noted
that the time periods for the filing of a transcript under Civ.R. 53(D)(3)(b)(iii) and
Hancock County Juvenile Rules 28(D)(1)(2) “are at odds with each other as to
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how long one has to file a transcript of the hearings upon which objections are
based,” and acknowledged that the April 17, 2012, dismissal “may or may not
have been premature” under the Local Juvenile Rules. However, in any case, it
found that Brent’s motion for extension of time to file the transcript was still
outside of the time limits of the “more lenient” Local Juvenile Rules (by three
days). Further, the court stated that, even if its original decision was premature, it
reconsidered and ratified it on May 4, 2012. Jul. 19, 2012 J.E.
{¶44} Thereafter, on August 6, 2012, the trial court filed a one-page
Judgment Entry and Orders, incorporating its previous judgments and entries;
approving and incorporating the findings of fact and conclusions of law as
contained in the Magistrate’s Decision; and denying Brent’s motion for a change
of custody and a modification of visitation and child support.
{¶45} A trial court will typically be allotted great discretion in the
management of the cases on its docket. See, e.g., In re Disqualification of Sutula,
105 Ohio St.3d 1237, 2004-Ohio-7351 ¶ 4. Likewise, it is within a trial court’s
discretion to decide whether or not it will reconsider a ruling or grant a motion for
relief from judgment or order. See Howard v. Catholic Soc. Serv. of Cuyahoga
Cty., Inc., 70 Ohio St.3d 141 (1994). A reviewing court will not reverse such
rulings unless the trial court has abused its discretion. See, e.g., Shaffer v. Lyme,
3d Dist. Shelby No. 17-10-23, 2011-Ohio-2204, ¶ 24. The term “abuse of
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discretion” implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶46} Based upon our review of the record, we find there are specific
circumstances in this case that when viewed together suggest that the trial court’s
decision denying reconsideration of its prior decision and refusing to review the
transcripts and Brent’s supplemental objections was an abuse of discretion.
{¶47} First, the record indicates that between the filing of the March 19,
2012 Judgment Entry and the April 11, 2012 Amended Judgment Entry, additional
information regarding the delay in the preparation of the transcript was brought to
the trial court’s attention, which prompted the trial court to amend its prior entry.
As previously discussed, these entries granted Brent’s counsel additional time to
file supplemental objections. The record demonstrates that the March 19, 2012
Judgment Entry, which stated that “Plaintiff’s Attorney shall have a period of
fourteen (14) days in which to file his supplemental objections” was modified by
the subsequent April 11, 2012 Judgment Entry to state “Plaintiff’s Attorney shall
have a period of fourteen (14) days after the filing of the transcripts in which to
file his supplemental objections.” (Emphasis added).
{¶48} Second, in the affidavit filed by Brent’s counsel on April 26, 2012,
the court reporter specifically stated that on April 5, 2012, after confirmation from
Brent’s counsel that the deposit was forthcoming, she reviewed the March 19,
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2012 Judgment Entry and notified Brent’s counsel that she would be unable to
complete the transcript in the 14 day timeframe mentioned in the judgment entry.
The court reporter further stated that six days later, on April 11, 2012, she received
the Amended Judgment Entry, which granted a new extension of time for
supplemental objections—the timeframe for which set forth no date but was based
solely upon the filing of the transcript. Thus, the court reporter’s affidavit is
consistent with the scenario that additional information was given to the trial court
regarding the delay in the preparation of the transcript.
{¶49} Both of these facts suggest that it was reasonable for Brent’s counsel
to believe that he adequately apprised the trial court of the delay in the transcript
preparation and, therefore, it was also reasonable for Brent’s counsel to rely on the
amended judgment entry of April 11, 2012 as implicitly granting him additional
time to file the transcript with the court as well as granting him an extension to file
his supplemental objections.
{¶50} Third, as acknowledged by the trial court, Juv.R. 40(D) and Hancock
County Juvenile Rules 28(D) each set forth a different time requirement for filing
the transcript supporting objections. The transcript in this case was due 30 days
after Brent filed objections, or on April 13th, according to the Juvenile Rules (as
well as Civ.R. 53). However, The Hancock County Rules of Juvenile Court
(“Local Juvenile Rules”) allow a party forty days, so the transcript was not due
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until April 23rd under the Local Juvenile Rules. Jul. 19, 2012 J.E. When
Elizabeth’s attorney filed her motion to dismiss on April 16, and the trial court
dismissed the objections on April 17, Brent still had seven and eight days,
respectively, in which to timely file the transcripts or to request an extension of
time. Therefore, under the Court’s own Local Juvenile Rules, the dismissal at that
time was in error and premature.
{¶51} Fourth, despite dismissing Brent’s objections on April 17, 2012, and
overruling his motion for extension of time to complete transcription on May 4,
2012, the record indicates that the trial court did not enter a final order stating it
had conducted its independent review of the matter until August 6, 2012. At this
point, the transcripts had been filed in the record for almost two months and
Brent’s supplemental objections had been filed with the court for nearly six weeks.
Thus, the trial court had the transcripts at its disposal and neither party would have
been prejudiced by the trial court reviewing the transcripts prior to issuing its final
order incorporating its previous judgments and entries, and approving and
incorporating the findings of fact and conclusions of law as contained in the
magistrate’s decision. Nor does it appear that any delay caused by the extensions
of time sought for either the supplemental objections or the transcript in this case
had any prejudicial impact upon the overall time it took the trial court to render its
final decision.
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{¶52} In sum, due to the lack of clarity regarding the scope of the trial
court’s order granting Brent’s counsel additional time to file supplemental
objections based upon the delay in preparing the transcripts, the trial court
granting Elizabeth’s motion to dismiss Brent’s objections prior to the expiration of
the 40 day timeframe to file the transcript specified in the local rule, and the trial
court’s delay in entering a final order on this case until months after the transcripts
were filed, all taken together lead us to conclude that the trial court’s judgments of
April 17, 2012, May 4, 2012, July 19, 2012, and August 6, 2012 amounted to an
abuse of discretion. Accordingly, the second assignment of error is sustained.
First Assignment of Error
{¶53} Brent claims that the trial court erred when it failed to name him as
the residential parent. He asserts that the testimony and evidence established that
having Elizabeth as the residential parent subjects his daughter to an environment
that is unstable, unsafe, and full of domestic strife, and that there was no evidence
to support the magistrate’s findings that it would not be in Vaeda’s best interest if
he was named the residential parent.
{¶54} Because this case is being remanded on procedural grounds, the trial
court will need to review the matter and rule on Brent’s objections before it
decides whether to adopt or reject the magistrate’s decision in whole or in part,
with or without modification, or take other such action as set forth in Juv.R.
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40(D)(4)(b). Therefore, Brent’s first assignment of error is not ripe for review at
this time until a proper judgment is entered and is therefore rendered moot.
{¶55} Notwithstanding this fact, due to the passing of so much time since
the hearings, we would encourage the trial court take advantage of Juv.R.
40(D)(4)(d) allowing that “the court may hear additional evidence * * *,” in order
to resolve some of the issues in the magistrate’s decision. See also Juv.R.
40(D)(4)(b). Perhaps this would allow for the opportunity for evidence to be
heard from an impartial advocate representing Vaeda’s best interest—i.e., through
the court utilizing the services of an independent guardian ad litem. Notably,
Vaeda was only three-and-a-half years old at the time of the hearings and unable
to express her perspective to the court.
{¶56} The appointment of a guardian ad litem may also prove to be
especially beneficial under these circumstances given that, except for the
testimony of the police officers, all of the evidence before the trial court consisted
of the testimony of the parties and their relatives/boyfriend/supporters. As a
result, it appears that the magistrate was forced to rely upon a significant amount
of speculation and assumption as to whether or not Elizabeth and Wellman would
remain sober and obey the law in the future; whether or not the domestic violence
and Brent’s animosity would affect Vaeda; and whether or not Brent would allow
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Vaeda to have visitation and foster a relationship with her mother to form the basis
of her decision.
{¶57} Accordingly, having found error prejudicial to the Appellant herein
in the particulars assigned and argued in the second assignment of error, we
reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS and SHAW, J.J., concur.
/jlr
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