In re M.K.L. , 2023 Ohio 79 ( 2023 )

[Cite as In re M.K.L., 2023-Ohio-79.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE M.K.L. :
No. 111764
Minor Child :
[Appeal by Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 12, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. FA-20-108763
Appearances:
Michael Drain, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
This appeal is before the court on the accelerated docket pursuant to
App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow
this court to render a brief and conclusory opinion. State v. Priest, 8th Dist.
Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.
Mother-appellant appeals from the juvenile court’s judgment
approving and adopting the magistrate’s decision that granted father shared
parenting and designated him as a residential parent and legal custodian of the
parties’ minor child. For the reasons that follow, we affirm.
In October 2020, father filed an application for shared parenting,
which mother opposed. In March 2022, the matter was assigned to a magistrate,
who conducted an evidentiary hearing. The magistrate issued a written decision
finding that shared parenting would be in the child’s best interest and granted
father’s application designating both mother and father as residential parents and
legal custodians.
On May 4, 2022, mother timely filed general, single-statement
objections challenging the magistrate’s factual findings and best interest
determinations. She also requested a transcript of the magistrate’s hearing and that
the juvenile court stay the proceedings pending the preparation of the transcript.
The court denied mother’s request for a stay, but granted her transcript request.
On June 7, 2022, the juvenile court approved and adopted the
magistrate’s decision. The court noted that no transcript of the magistrate’s hearing
had been filed; accordingly, it overruled mother’s general objections.
Mother now appeals, raising three assignments of error.
I. Motion to Stay
In her first assignment of error, mother contends that the juvenile
court abused its discretion in denying her motion to stay the proceedings pending
receipt of the trial transcript. In support, Mother generally asserts that the
“provisions of Civ.R. 53” allow the juvenile court to grant a reasonable period of time
to file the transcript, and had the court granted the stay, it could have considered the
transcript of hearing.
Juv.R. 40(D)(4)(a) provides that “a magistrate’s decision is not
effective unless adopted by the court.” In this case, the juvenile court made no
decision, adverse or otherwise, affecting the merits of the proceedings during the
time that mother filed her objections and when the court adopted the magistrate’s
decision. Accordingly, we find no abuse of discretion in the court’s decision to not
stay the proceedings pending the filing of a trial transcript. This assignment of error
is overruled.
II. Overruling Objections
In Mother’s second assignment of error, she contends that the
juvenile court abused its discretion in overruling her objections on the day after the
trial transcript was filed. Aside from failing to comply with App.R. 16(A)(7) by not
citing to any authority in support of her argument, we find no merit to mother’s
assignment of error.
Juv.R. 40(D)(3)(b) governs objections to a magistrate’s decision. The
rule mandates that the “objecting party” file the transcript with the court “within
thirty days after filing objections” unless the juvenile court extends that time. Juv.R.
40(D)(3)(b)(iii). In this case, mother filed her timely general objections to the
magistrate’s decision on May 4, 2022. Accordingly, she was required to file the
transcript within 30 days (or June 3, 2022), or seek an extension of time with the
juvenile court. Mother did not do either.
Mother contends that the transcript was filed on June 6, 2022.1 Our
review of the juvenile court docket, however, reveals that the transcript of the March
23, 2022 magistrate’s hearing was never filed with the juvenile court. Mother did
not file a notice of filing of transcript and the transcript provided to this court as part
of the App.R. 9(B) record does not bear any file stamp depicting that it was filed on
June 6, 2022.2 Accordingly, based on our review of the record, mother’s second
assignment of error lacks foundation and merit.
III. Shared Parenting
In her final assignment of error, mother contends that the juvenile
court’s order naming father as a “residential parent and legal custodian is not in the
child’s best interest and is contrary to law.”
Mother first claims that because father did not file a parenting plan
with his application for shared parenting, R.C. 3109.04(A)(1) mandated the juvenile
court to allocate parental rights and responsibilities “primarily to one of the
parents.” According to mother, this deficiency renders the court’s decision contrary
to law. We find that mother has waived this argument on appeal because she failed
to raise this issue in her objections to the magistrate’s decision.
1 Even if the transcript was filed the day before the juvenile court ruled on Mother’s
objections, the filing would have been untimely under Juv.R. 40(D)(3)(b)(iii).
2 If the transcript was previously filed with the juvenile court, it would have been
included as part of the juvenile court record, certified docket, and pagination submitted
to this court, and mother separately ordering the preparation of a transcript under App.R.
9(B) would have been unnecessary.
Mother raised three general single-statement objections to the
magistrate’s decision — (1) the record does not support the finding that the father
can parent the child; (2) the shared parenting plan adopted by the court is not in the
best interest of the child; and (3) the order that the father should also be named the
residential parent and legal custodian of the child is not in the child’s best interest.
Under Juv.R. 40(D)(3)(b)(ii), an objection to a magistrate’s decision
must be “specific and state with particularity all grounds for objection.” “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 * * *, unless the party has objected to that
finding or conclusion as required by Juv.R. 40(D)(3)(b).” Juv.R. 40(D)(3)(b)(iv).
Because Mother did not raise any challenge to the magistrate’s decision regarding
the applicability or compliance with R.C. 3109.04, this court will not consider it on
appeal. See, e.g., In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-Ohio-4126 (where
a party fails to raise an issue in its objections to a magistrate’s decision, the party has
waived the issue for purposes of appeal).3
Regarding mother’s bare assertion that the juvenile court’s decision
was not in the child’s best interest, we are authorized to summarily overrule this
argument because mother has failed to comply with App.R. 12(A)(2) and 16(A)(3)
by failing to make specific references to the record substantiating her claim and
3 Mother has not made any claim for plain error in this assignment of error.
identifying portions of the record where the alleged errors are reflected. See Univ.
Hts. v. Johanan, 8th Dist. Cuyahoga No. 110887, 2022-Ohio-2578, ¶ 9-10, citing
State v. Fisher, 8th Dist. Cuyahoga No. 83098, 2004-Ohio-3123, ¶ 26.
Additionally, we find no abuse of discretion by the juvenile court in
adopting the magistrate’s factual findings because mother failed to provide the court
with a transcript of the magistrate’s hearing. Juv.R. 40(D)(3)(b)(iii) provides that a
party wishing to object to a magistrate’s factual finding is required to support the
objection with the transcript of the evidence submitted to the magistrate relevant to
that finding. Where an objecting party fails to provide the trial court with the
transcript of the proceedings, an appellate court is precluded from considering the
transcript of the magistrate’s hearing submitted with the appellate record. Juv.R.
40(D)(3)(b)(iv); In re A.L., 8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 12,
citing State ex rel Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654
N.E.2d 1254 (1995); see also In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-
4476 (transcript provided to appellate court cannot be considered when that same
transcript was not provided to the trial court).4
Accordingly, mother’s third assignment of error is overruled.
Judgment affirmed.
4 We note that no appellee brief has been filed. App.R. 18(C) grants this court
discretion to accept mother’s statement of facts and issues as correct and reverse the
judgment of the trial court when no appellee brief has been filed, but only when “the
appellant’s brief reasonably appears to sustain such action.” Based on our review of
mother’s limited statement of facts and issues, we decline to exercise that discretion in
this case.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
LISA B. FORBES, J., and
MARY J. BOYLE, J., CONCUR