Losekamp v. Losekamp , 2014 Ohio 4422 ( 2014 )

[Cite as Losekamp v. Losekamp, 2014-Ohio-4422.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
TIFFANY A. LOSEKAMP, :
Plaintiff-Appellant, : CASE NO. CA2013-11-213
: OPINION
- vs - 10/6/2014
:
THOMAS M. LOSEKAMP, :
Defendant-Appellee. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR 11-04-0464
The Lampe Law Office, LLC, M. Lynn Lampe, Adam C. Gedling, 1248 Nilles Road, Suite 7,
Fairfield, Ohio 45014, for plaintiff-appellant
Lawrence P. Fiehrer, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-
appellee
RINGLAND, P.J.
{¶ 1} Plaintiff-appellant, Tiffany A. Losekamp (Wife), appeals a decision of the Butler
County Court of Common Pleas, Domestic Relations Division, which reversed a magistrate's
decision and found Wife in contempt and modified certain parenting provisions of the divorce
decree of Wife and defendant-appellee, Thomas M. Losekamp (Husband).
Butler CA2013-11-213
{¶ 2} Husband and Wife were married on October 17, 1998, and two children were
born during the marriage. The parties were divorced by decree entered on June 8, 2012.
There has been extensive litigation post-decree between the parties. Specifically as related
to the instant case, Wife filed three contempt motions against Husband, alleging he failed to
comply with the decree by: (1) failing to forward real estate escrow funds due to Wife; (2)
failing to renew the minor children's passports; and (3) failing to reimburse Wife for his
portion of the minor children's medical expenses. Husband also filed contempt motions
against Wife asserting she had denied him parenting time and had violated the "right of first
refusal" provision regarding overnight care of the children. In addition, Husband filed a
motion to modify parenting time to permit Husband to pick up the children from school at 2:30
p.m. prior to his parenting time on Wednesdays and Fridays. Additionally, Husband filed a
motion to modify the parenting provision related to extracurricular activities for the children.
Both parties filed motions for attorney fees and costs.
{¶ 3} On June 11, 2013, the magistrate held a hearing on these motions. On July 8,
2013, the magistrate issued its decision recommending Wife's contempt motion related to the
children's passports and her request for attorney fees be granted and the remaining motions
be denied. In the decision, the magistrate noted that Husband's motion to modify the
parenting provision as to extracurricular activities was withdrawn.
{¶ 4} On July 26, 2013, the trial court filed a judgment entry affirming and adopting
the magistrate's July 8, 2013 decision. The trial court's decision noted that neither party had
filed timely objections to the magistrate's decision. This decision does not contain a
certificate of service indicating that it was served on the parties. However, the docket sheet
for this case indicates that the clerk of court provided notice to all parties and counsel of the
trial court's "final appealable order" filed on July 26, 2013, and that such notice was sent on
July 29, 2013.
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{¶ 5} On July 30, 2013, Husband filed objections to the magistrate's July 8, 2013
decision. Husband also filed an objection to the reasonableness of attorney fees requested
by Wife's counsel. The trial court took the matter under advisement after the parties
submitted their memoranda in support of their respective positions. On October 28, 2013,
the trial court issued its decision, affirming in part, and reversing in part the magistrate's
decision. Specifically, the trial court affirmed and adopted the portion of the magistrate's
decision which denied Wife's contempt motion regarding the escrow funds as Husband had
purged any contempt. The trial court denied Wife's remaining contempt motions. Moreover,
the trial court reversed the magistrate's decision granting Wife attorney fees. Rather, the trial
court found that the parties should pay their own attorney fees and equally divide any
remaining costs. As to Father's motions, the trial court agreed that Wife could not be held in
contempt for violating the "right of first refusal" and affirmed that part of the magistrate's
decision. As to the remaining issues, the trial court reversed the magistrate's decision finding
Wife was in contempt for her interference with Husband's parenting time, and granted
Father's motions to modify parenting time and to modify the parenting provision as to
extracurricular activities.
{¶ 6} Wife now appeals the trial court's decision, raising the following five
assignments of error for our review:
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
OVERRULING THE MAGISTRATE'S DECISION WHEN AN OBJECTION WAS NOT
TIMELY FILED AND THE TRIAL COURT HAD ALREADY ISSUED A FINAL APPEALABLE
ORDER ADOPTING THE MAGISTRATE'S DECISION.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING TERMS IN
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THE DECREE OF DIVORCE WHEN NO MOTION WAS FILED TO MODIFY THESE TERMS
AND APPELLANT WAS NOT AFFORDED DUE PROCESS TO PRESENT EVIDENCE ON
THESE MODIFICATIONS.
{¶ 11} Assignment of Error No. 3:
{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND
APPELLEE IN CONTEMPT FOR FAILING TO RENEW THE PASSPORTS WHEN
APPELLEE STIPULATED HE DID NOT RENEW THE PASSPORTS AND DID NOT
ATTEMPT TO RENEW THE PASSPORTS BY THE COURT'S DEADLINE.
{¶ 13} Assignment of Error No. 4:
{¶ 14} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLANT IN
CONTEMPT OF DENIAL OF PARENTING TIME WHEN APPELLEE FAILED TO PICK UP
THE MINOR CHILDREN.
{¶ 15} Assignment of Error No. 5:
{¶ 16} THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING THE
PARENTING TIME ORDERS FOR WEEKEND PARENTING TIME AND ORDERING
APPELLANT, THE SOLE LEGAL CUSTODIAN OF THE MINOR CHILDREN, TO NOT
SCHEDULE ANY ACTIVITIES DURING MR. LOSEKAMP'S PARENTING TIME UNLESS
AGREED BY THE PARTIES.
{¶ 17} Wife, in her first assignment of error, challenges the trial court's October 28,
2013 decision arguing that it did not have the authority to rule on Husband's objections and
consequently reverse much of the magistrate's decision. Wife contends that Husband's
objections were untimely. In addition, Wife asserts the trial court had already entered a final
appealable order on July 26, 2013, adopting the magistrate's decision, and therefore the trial
court's October 28, 2013 decision improperly overruled its own final appealable order.
{¶ 18} Pursuant to Civ.R. 53(D)(3)(b)(i), a party may file objections to a magistrate's
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decision within 14 days of the filing of the decision, "whether or not the court has adopted the
decision during that fourteen-day period." The timely filing of objections to a magistrate's
decision operates as an automatic stay of execution of the judgment until the court disposes
of those objections and vacates, modifies, or adheres to the judgment previously entered.
Civ.R. 53(D)(4)(e)(i).
{¶ 19} In certain circumstances, the civil rules do permit an extension of time to permit
a party to file objections outside the 14-day time period. Specifically, under Civ.R. 53(D)(5),
"[f]or good cause shown, the court shall allow a reasonable extension of time for a party to * *
* file objections to a magistrate's decision." Civ.R. 53(D)(5). Additionally, Civ.R. 6(B)(2)
permits a court to extend the time prescribed by the civil rules for performing an act upon a
showing of excusable neglect. However, Civ.R. 6(B)(2) "contemplates a request for an
extension of time to do an act [be] made before the court rules on the matter the act
concerns." (Emphasis sic.) Learning Tree Academy, Ltd. v. Holeyfield, 12th Dist. Butler No.
CA2013-10-194, 2014-Ohio-2006, ¶ 15, quoting Stamper v. Keatley, 4th Dist. Lawrence No.
04CA14, 2004-Ohio-5430, ¶ 7. Accordingly, a trial court has the discretion to consider
objections filed after the 14-day time limit of Civ.R. 53 (D) so long as the trial court has not
entered a final judgment. (Emphasis sic.) Learning Tree at ¶ 15, fn. 2, citing Mitchell v.
Haynes, 7th Dist. Mahoning No. 00 CA 117, 2001 WL 1004256 (Aug. 30, 2001) .
{¶ 20} "[A] court does not have 'jurisdiction to permit objections to the magistrate's
decision when the magistrate's decision was adopted and already made a final judgment by
the trial court.'" In re C.B., 12th Dist. Clermont No. CA2013-12-094, 2014-Ohio-3784, ¶ 12,
quoting Learning Tree at ¶ 17; see In re J.A.M. at ¶ 15 (finding that the trial court's jurisdiction
"terminated" once it entered a final judgment in the matter). A party may only seek relief from
the final judgment through a motion notwithstanding the verdict under Civ.R. 50(B), a motion
for a new trial under Civ.R. 59, or a motion for relief from judgment under Civ.R. 60(B).
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Learning Tree at ¶ 16, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379-380
(1981).
{¶ 21} In the case at bar, the magistrate's decision was filed on July 8, 2013.
Pursuant to Civ.R. 53(D)(3)(b)(i), the 14-day period for either party to object to the
magistrate's decision expired on July 22, 2013. The record demonstrates that Husband's
objections were not filed until July 30, 2013, and Husband did not request an extension of
time to file his objections. Accordingly, on this record, we conclude Husband's objections
were untimely.
{¶ 22} Husband asserts his objections should be considered timely as he presented
his objection to the magistrate's decision to the "case management [office] on July 22, 2013
pursuant to [Loc.R. DR 33 of the Butler County Domestic Relations Court and] * * * [f]or
reasons unknown and out of the control of counsel for Defendant/Appellee, the Objection
was not filed until July 30, 2013." We find no merit to this argument.
{¶ 23} Civ.R.5(E) makes it clear that "[t]he filing of documents with the court, as
required by these rules, shall be made by filing them with the clerk of court." As evidenced
by the time and date stamp on Husband's objections, the objections were filed with the clerk
of court on July 30, 2013. Husband has failed to point to any rule which would permit filing
objections with the case management office instead of the clerk of court. Rather, the local
rules are explicit: "Submission to any section of the Case Management Office is not a
filing of the legal action. All Domestic Relations Court filings must be done at the Clerk of
Courts Office." (Emphasis sic.) Loc.R. DR 1(F). Moreover, Husband's reliance on Loc.R.
DR 33 to assert his objections were timely is misplaced.
{¶ 24} Loc.R. DR 33 requires a party filing objections to a magistrate's decision to
"obtain a hearing date from the Judicial Case Manager" and that all objections must "contain
a notice of the hearing date, time, place of the hearing, the name of the judge assigned to
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hear the objection and the basis for the objection." Loc.R. DR 33(A). Essentially, Husband
asserts that he could not file his objections in compliance with the local rules until he received
the hearing date on July 30, 2013. However, as outlined above, pursuant to Civ.R. 53(D)(5)
or Civ.R. 6(B), Husband could have requested an extension of time to file his objections in
order to obtain a hearing date and thus comply with both the civil rules and Loc.R. DR 33.
Husband failed to request any such extension of time, and his objections were not filed until
July 30, 2013. On this record, we can only conclude that Husband's objections were
untimely.1
{¶ 25} Moreover, without a timely objection to the magistrate's decision, there was no
automatic stay of execution of the trial court's judgment, and therefore the trial court's July
26, 2013 judgment adopting the magistrate's decision was the final order of the court.
Accordingly, this judgment against Husband remained in full effect and Husband did not seek
relief from this final judgment pursuant to Civ.R. 60(B).2 Despite this fact, the trial court
subsequently considered Husband's untimely objections and reversed the magistrate's
decision. However, this second judgment entered on October 28, 2013 was void, where as a
result of Husband's procedural failures, the trial court's jurisdiction terminated when it entered
its July 26, 2013 judgment. Learning Tree at ¶ 17; In re J.A.M. at ¶ 15; Murray v. Goldfinger,
Inc., 2d. Dist. Montgomery No. 19433, 2003-Ohio-459 (noting that once a court enters a final
judgment in a case, a second attempt to impose a final judgment would be a nullity).
Accordingly, Wife's first assignment of error is well-taken and sustained.
1. In support of his argument that the objections were filed timely, Husband requested this court to review the
Affidavit of Lawrence P. Fiehrer, Esq. attached to Husband's brief in this case. An appellate court is precluded
from considering evidence not before the court below. Herbert v. Herbert, 12th Dist. Butler No. CA2011-07-132,
2012-Ohio-2147, ¶ 15. "A reviewing court cannot add matter to the record before it, which was not a part of the
trial court's proceedings, and then decide the appeal on the basis of the new matter." Id.; State v. Ishmail, 54
Ohio St.2d 402 (1978), paragraph one of the syllabus. Accordingly, we are precluded from considering this
affidavit and our decision is limited to what is in the record and made part of the trial proceedings below.
2. As a Civ.R. 60(B) motion was not filed, the merits of such motion are not currently before us.
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{¶ 26} As the trial court did not have jurisdiction to enter the October 28, 2013 order,
that judgment is void. The trial court is constrained by its own jurisdiction and without some
sort of post-judgment motion, it simply did not have jurisdiction to reconsider its own final
appealable order. Accordingly, we must reverse and vacate the trial court's October 28, 2013
judgment. As the remaining assignments of error relate to the merits of the trial court's
October 28, 2013 order, we find such arguments are rendered moot.
{¶ 27} The trial court's October 28, 2013 order is hereby reversed and vacated.
{¶ 28} Judgment vacated.
S. POWELL and PIPER, JJ., concur.
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