Bond v. De Rinaldis , 108 N.E.3d 657 ( 2018 )

[Cite as Bond v. Pandolfi, 2018-Ohio-930.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Joshua Bond, :
Plaintiff-Appellee, :
No. 16AP-756
v. : (C.P.C. No. 12JU-12-16016)
Gianna Pandolfi de Rinaldis, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 13, 2018
On brief: Joshua Bond, pro se. Argued: Joshua Bond.
On brief: Sowald, Sowald, Anderson, Hawley & Johnson,
Beatrice K. Sowald, and Eric W. Johnson, for appellant.
Argued: Eric W. Johnson.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
HORTON, J.
{¶ 1} In the second appeal in this child custody case, defendant-appellant, Gianna
Pandolfi de Rinaldis ("Pandolfi"), appeals from the decision of the Franklin County Court
of Common Pleas, Division of Domestic Relations, Juvenile Branch, that sustained her
motion for relief from judgment under Civ.R. 60(A). After this court affirmed a shared
parenting plan in the first appeal, Pandolfi requested that the trial court amend the
judgment to adopt a different plan in the record due to a purported clerical error. She
now appeals that judgment, asserting that the adopted plan is inequitable. For the
reasons set forth below, we hold that the doctrine of invited error precludes Pandolfi
from challenging the trial court's decision. Furthermore, we recognize the error
identified by plaintiff-appellee, Joshua Bond ("Bond"), who opposed Pandolfi's motion
before the trial court and on appeal yet did not file a notice of cross-appeal, as the error
No. 16AP-756 2
is apparent from the record. Thus, we also hold that the trial court erred because its
ruling made a substantive change to the judgment not authorized by Civ.R. 60(A), as the
rule only allows the correction of clerical errors. Accordingly, we reverse the judgment of
the trial court and remand with instructions to vacate that judgment entry and reinstate
the previous parenting plan.
{¶ 2} The following summary of the factual and procedural background relevant
to this appeal is from the opinion resolving the first appeal, Bond v. Pandolfi de Rinaldis,
10th Dist. No. 15AP-646, 2016-Ohio-3342 (hereinafter "Bond I"):
Pandolfi and plaintiff-appellee, Joshua Bond, are the parents
of a son named Andrew. Although the parties were engaged
for a short period, they never married.
Andrew was born on September 27, 2012. As Andrew's
mother, Pandolfi had the discretion to determine how
Andrew's surname would appear on his birth certificate. See
R.C. 3705.09(F)(2). Without consulting Bond, Pandolfi chose
the surname "Pandolfi de Rinaldis Cano" for Andrew.
On December 11, 2012, Bond filed a complaint seeking a
judgment (1) determining the existence of a parent/child
relationship between him and Andrew, (2) changing Andrew's
surname to include Bond's surname, and (3) establishing a
child custody arrangement and the amount of child support
owed. Shortly after filing his complaint, Bond moved for an
order allocating the parental rights and responsibilities for
Andrew in accordance with the shared parenting plan that
Bond filed with his motion.
The parties submitted to genetic testing, which established a
99.99 percent probability that Bond was Andrew's father.
Subsequent to the testing, the trial court issued an agreed
judgment entry that determined that a father/child
relationship existed between Bond and Andrew. The trial
court reserved ruling on the remaining issues in the case.
On March 19, 2013, the magistrate issued temporary orders
requiring Bond to pay child support to Pandolfi and granting
Bond parenting time with Andrew. Additionally, at Pandolfi's
request, the magistrate appointed a guardian ad litem for
Andrew.
Over the course of five days in November 2013, the parties
presented evidence at a hearing before the magistrate. During
the hearing, the parties primarily focused on two issues: (1)
No. 16AP-756 3
whether Andrew's surname should be changed, and (2) the
appropriate custody arrangement. * * *
With regard to the custody arrangement, Bond sought shared
parenting according to the plan that he had submitted to the
trial court. That plan gave the parties equal parenting time
with Andrew. Pandolfi resisted shared parenting and, instead,
asked to be named the sole residential parent and legal
custodian of Andrew. Pandolfi planned to return to her home
in Puerto Rico, and she wanted to take Andrew with her. She
proposed that Bond would exercise parenting time through
video chatting, as well as four face-to-face visits per year.
The guardian ad litem recommended that the trial court adopt
shared parenting, with Bond exercising parenting time every
Monday from 5:45 p.m. until Tuesday at 7:30 a.m., every
Wednesday from 5:30 p.m. until 7:30 p.m., and alternating
weekends from Friday at 5:45 p.m. until Sunday at 6:00 p.m.
The guardian also recommended that the parties follow the
applicable local rule in determining which parent would have
Andrew on the holidays, with the exception that the regular
parenting time schedule would apply during winter and
summer breaks. Finally, the guardian recommended that the
trial court preclude Bond from leaving Andrew alone with
Bond's father, Jeffrey Bond.
The magistrate issued a decision on September 3, 2014. In
that decision, the magistrate concluded that a change of
Andrew's surname to "Bond-Pandolfi de Rinaldis" was in
Andrew's best interest. The magistrate also concluded that
shared parenting was in Andrew's best interest. The
magistrate, however, did not approve the shared parenting
plan that Bond had submitted. The magistrate found the
parenting time schedule recommended by the guardian more
appropriate for Andrew than the schedule in Bond's shared
parenting plan, with one exception. Instead of maintaining
the regular parenting time schedule during the winter break,
as the guardian recommended, the magistrate found it more
appropriate to give each parent a ten-day block of parenting
time during the winter break. The magistrate ordered Bond to
submit an amended shared parenting plan that comported
with the magistrate's findings regarding parenting time.
Finally, with regard to child support, the magistrate deviated
downward from the guideline child support amount and
ordered Bond to pay $600 per month effective January 1,
2013. The trial court approved and adopted the magistrate's
decision on the same day that it was filed.
No. 16AP-756 4
Bond complied with the magistrate's order that he file an
amended shared parenting plan. The magistrate then
reviewed the amended plan. On October 21, 2014, the
magistrate issued a decision finding the amended plan in
Andrew's best interest and adopting that plan as the shared
parenting decree. The trial court approved and adopted the
magistrate's decision on the same day that it was filed.
Pandolfi objected to both of the magistrate's decisions. The
trial court held a hearing on Pandolfi's objections. At the
hearing, both Pandolfi and Bond testified. In a judgment
issued June 12, 2015, the trial court found one of Pandolfi's
objections moot and denied the remaining objections.
Id. at ¶ 2-12.
{¶ 3} Pandolfi appealed, raising six assignments of error. Relevant to the present
appeal is her fourth assignment of error:
THE TRIAL COURT IMPROPERLY APPROVED AND
ADOPTED A PARENTING PLAN THAT PROVIDED
APPELLANT WITH LITTLE MEANINGFUL OPPORTUNITY
TO RETURN TO HER HOME IN PUERTO RICO AT ANY
TIME WITH THE MINOR CHILD.
Id. at ¶ 13.
{¶ 4} We overruled this assignment of error, reasoning as follows:
By her fourth assignment of error, Pandolfi argues that the
trial court abused its discretion in approving a shared
parenting plan that only allows for one ten-day trip to Puerto
Rico every other year. This argument presumes that the trial
court approved the amended shared parenting plan that Bond
submitted upon the magistrate's order. However, the trial
court instead approved Bond's original shared parenting plan,
which was admitted as Exhibit 9 at the hearing. The original
shared parenting plan follows the model parenting time
schedule set forth in former Loc.R. 22 with regard to holidays
and vacations. Pandolfi, therefore, may arrange a two-week
vacation with Andrew every summer. Pandolfi will also
receive parenting time with Andrew during one-half of every
winter break, as well as the entirety of spring break every
other year. The trial court found the original shared parenting
plan was in Andrew's best interest because it afforded
Pandolfi sufficient periods of time throughout the year to
travel. We see no abuse of discretion in this finding.
Accordingly, we overrule Pandolfi's fourth assignment of
error.
No. 16AP-756 5
Id. at ¶ 46.
{¶ 5} We overruled Pandolfi's other assignments of error and affirmed the trial
court's judgment. Id. at ¶ 59. The decision was released on June 9, 2016.
{¶ 6} On August 12, 2016, Pandolfi filed a motion in the trial court under
Civ.R. 60(A), the rule allowing a trial court to correct clerical mistakes in judgments. She
requested that the trial court correct the June 12, 2015 judgment entry that formed the
basis for her previous appeal, asserting that the judgment contained a "mistaken
reference" to the wrong parenting plan (the unmodified original plan filed on January 18,
2013). (Aug. 12, 2016 Def.'s Mot. for Relief Pursuant to Civ.R. 60(A).) Pandolfi requested
that the court adopt the September 16, 2014 shared parenting plan instead. Her
memorandum in support of the motion omitted any mention of this court's affirmance of
the trial court's adoption of the January 28, 2013 original parenting plan. Id.
{¶ 7} Bond opposed the motion. He argued that it would be "inappropriate" to
apply Civ.R. 60(A) because "no clerical mistake occurred and the issue at hand was
already reviewed and affirmed as correct" by this court. (Aug. 12, 2016 Pl.'s Request for
Denial of Def.'s Mot. for Relief Pursuant to Civ.R. 60(A).) Bond also argued that the
modified plan that Pandolfi was asking the trial court to adopt actually provided her with
"less extended time" than the originally adopted plan, and that Pandolfi had never argued
that the trial court had made a clerical error by adopting it during the first appeal. Id.
{¶ 8} On October 24, 2016, the court sustained Pandolfi's motion. In a one-page
judgment entry, the trial court stated only that it had "mistakenly referenced 'Plaintiff's
Exhibit 9' rather than the Amended Shared Parenting Plan," and adopted the
September 16, 2014 plan instead. (Oct. 24, 2016 Jgmt. Entry.)
{¶ 9} After the trial court sustained her motion and granted the relief she
requested, Pandolfi filed a notice of appeal on November 4, 2016. Her sole assignment of
error is a verbatim reiteration of the fourth assignment of error from Bond I:
THE TRIAL COURT IMPROPERLY APPROVED AND
ADOPTED A PARENTING PLAN THAT PROVIDED
APPELLANT WITH LITTLE MEANINGFUL OPPORTUNITY
TO RETURN TO HER HOME IN PUERTO RICO AT ANY
TIME WITH THE MINOR CHILD.
{¶ 10} In support of her appeal, Pandolfi argues that the trial court abused its
discretion by adopting a parenting plan that only provides her with "only an extremely
No. 16AP-756 6
limited opportunity to travel to Puerto Rico (or elsewhere) during her allotted parenting
time." (Appellant's Brief at iv.) She argues that even under the model parenting time
schedule in the trial court's local rules, she would have received substantially more
uninterrupted parenting time than the ten-day period during winter break allowed by the
final plan adopted by the trial court. (Appellant's Brief at 11.) She cites Bond's own
testimony, during which he stated that he would have "no problem" with each parent
having two weeks of uninterrupted parenting time during the summer. (Appellant's Brief
at 12.) Pandolfi describes the trial court's allocation of vacation time as "completely
arbitrary" and asks that this court remand this case with instructions to allow
"appropriate vacation time" in the parenting plan. (Appellant's Brief at 14.)
{¶ 11} In response, Bond agrees with Pandolfi's characterization of his testimony,
and that he has always been in favor of "equal holiday time and summer vacation" for
each parent to spend with the child. (Appellee's Brief at 9.) He attributes the abbreviated
ten-day period to an "oversight" by the guardian ad litem in her original recommendation.
Id. However, he questions Pandolfi's motives for appealing a motion she prevailed on in
the trial court. (Appellee's Brief at 15.) Bond asserts that the trial court erred when it
sustained Pandolfi's Civ.R. 60(A) motion because the substituted parenting plan created a
substantive change in the judgment. (Appellee's Brief at 15-16.)
{¶ 12} Pandolfi replies by asserting that Bond cannot challenge the trial court's
judgment because he failed to file a notice of cross-appeal, as required by App.R. 4, and
has therefore waived any challenge to the judgment. (Reply Brief at 7-8.)
{¶ 13} Appellate courts apply an abuse of discretion standard when reviewing a
trial court's decision under Civ.R. 60(A) to correct clerical mistakes in a judgment. Star
Merch., LLC v. Haehn, 10th Dist. No. 16AP-39, 2016-Ohio-8018, ¶ 11. The same standard
applies to appellate review of a trial court's "allocation of parental rights and
responsibilities" under R.C. 3109.04. Lumley v. Lumley, 10th Dist. No. 09AP-556, 2009-
Ohio-6992, ¶ 9.
{¶ 14} We first note that the doctrine of invited error prevents Panfoldi from
challenging the trial court's judgment. "Under the doctrine of invited error, an appellant,
in either a civil or a criminal case, cannot attack a judgment for errors committed by
himself or herself, for errors that the appellant induced the court to commit, or for errors
which the appellant is actively responsible." In re J.B., 10th Dist. No. 11AP-63, 2011-Ohio-
No. 16AP-756 7
3658, ¶ 10. "Under this principle, a party cannot complain of any action taken or ruling
made by the court in accordance with that party's own suggestion or request." Id. Here,
Pandolfi moved the trial court under Civ.R. 60(A) to amend its judgment by adopting a
different shared parenting plan. Having prevailed, she now appeals from a judgment
entered at her own request. Although her assignment of error highlights the merits by
asserting that the trial court erred by adopting a parenting plan with an unduly restrictive
vacation schedule, it was her use of the procedural mechanism of Civ.R. 60(A) to obtain a
"new" judgment that has allowed her to appeal.
{¶ 15} It must be emphasized that the plan adopted by the trial court when
sustaining Pandolfi's motion is considerably less favorable to her goal of having extended
vacation time than the one previously adopted and affirmed by this court. In the first plan,
each parent was expressly allowed to "arrange an uninterrupted vacation of not more than
two (2) weeks with the child" during the summer, as well as being given half of winter
break every year and half of spring break in alternating years, whereas in the second plan
the maximum uninterrupted vacation duration is ten days during winter break, with no
provision for summer vacations or spring break. Pandolfi convinced the trial court to
adopt a plan less favorable to her goal of uninterrupted vacation time than the existing
one, and, by doing so, provided a basis for this appeal. In short, it is difficult to interpret
her post-appeal Civ.R. 60(A) motion and the instant appeal as anything other than an
attempt to relitigate the issue of the allocation of vacation time.
{¶ 16} The proper course of action is to seek modification of the plan under R.C.
3109.04. She may argue for a change in circumstances under R.C. 3109.04(E)(1). Or,
Pandolfi could negotiate with Bond and seek a joint modification of the plan under
subsection R.C. 3109.04(E)(2)(a), which states that "[b]oth parents under a shared
parenting decree jointly may modify the terms of the plan for shared parenting approved
by the court and incorporated by it into the shared parenting decree." Such a stipulated
modification "may be made at any time." Id. What Pandolfi may not do is avoid the
statutory process with a procedural sleight of hand under Civ.R. 60(A) that returns her
previous arguments (many of which are expressed verbatim from the briefing in Bond I)
to this court in the guise of a new judgment.
{¶ 17} Furthermore, we reject Pandolfi's argument that Bond's failure to file a
notice of cross-appeal precludes his attack on the trial court's Civ.R. 60(A) ruling. This
No. 16AP-756 8
argument is not well-taken, particularly in light of her invitation to the trial court to
commit an error that allowed this appeal. As appellee, Bond is free to counter Pandolfi's
argument with " 'an attack upon the reasoning of the lower court or an insistence upon a
matter overlooked or ignored by it' " without filing a notice of cross-appeal. Kaplysh v.
Takieddine, 35 Ohio St.3d 170, 175 (1988), quoting United States v. American Ry.
Express Co., 265 U.S. 425, 435 (1924).
{¶ 18} We also note that an appellate court is authorized under App.R. 12 to decide
any assignment of error not raised by the parties where the error is evident from the
record. Hungler v. Cincinnati, 25 Ohio St.3d 338, 341 (1986) ("an appellate court may
pass on errors not assigned by the parties"). In order to "recognize error not assigned by
the parties, there must be sufficient basis in the record before it upon which the court can
decide that error." (Emphasis sic.) Id. at 342. See also State v. Peagler, 76 Ohio St.3d 496,
499 (1996) (stating that App.R. 12 "allows a court of appeals discretion in deciding to
address an issue not briefed or raised below, the court of appeals must base any factual
conclusions reached upon evidence that exists in the record"). As mentioned, Bond
opposed the trial court's ruling and contends that the substitution of one parenting plan
for another under Civ.R.60 (A) is a substantive change beyond what the rule allows. For
the following reasons, we conclude that Bond's argument has merit, and the error he
highlights is obvious from the record.
{¶ 19} Civ.R. 60(A) states that "[c]lerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission may be corrected
by the court at any time on its own initiative or on the motion of any party and after such
notice, if any, as the court orders." The rule " 'permits a trial court, in its discretion, to
correct clerical mistakes that are apparent on the record, but does not authorize a trial
court to make substantive changes in judgments.' " Brewer v. Brewer, 10th Dist. No.
09AP-146, 2010-Ohio-1319, ¶ 13, quoting Atwater v. Delaine, 155 Ohio App.3d 93, 2003-
Ohio-5501 (8th Dist.). " 'The term "clerical mistake" refers to a mistake or omission,
mechanical in nature and apparent on the record that does not involve a legal decision or
judgment.' " Id. We have explained the difference between clerical and substantive
mistakes as follows:
"[T]he basic distinction between clerical mistakes that can be
corrected under Civ.R. 60(A) and substantive mistakes that
cannot be corrected is that the former consists of "blunders in
No. 16AP-756 9
execution" whereas the latter consists of instances where the
court changes its mind, either because it made a legal or
factual mistake in making its original determination, or
because, on second thought, it has decided to exercise its
discretion in a different manner."
Brewer at ¶ 13, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 331, 2004-Ohio-4423,
¶ 10 (10th Dist.).
{¶ 20} In Wardeh, we held that a trial court's ruling under Civ.R. 60(A) that
deleted a paragraph from a civil protection order allowing a father only supervised
visitation with his child was a substantive change not permitted by the rule. Wardeh at ¶
12. Here, similarly, the trial court's substitution of one parenting plan for another that
altered the number of uninterrupted vacation days available to each parent effected a
substantive change to the original judgment. The differences between the two plans were
litigated before the magistrate. The trial court's first judgment adopted the plan that it
found to be equitable and in the best interests of the child, and this court affirmed that
decision by considering and evaluating the substance of the vacation schedule at issue. As
in Wardeh, the change created by the trial court's action "exceeded the scope" of its
authority under Civ.R. 60(A).
{¶ 21} In conclusion, we overrule Pandolfi's assignment of error because the
doctrine of invited error prevents her from challenging a judgment that she induced the
trial court to adopt. Her remedy for modifying the parenting plan exists under R.C.
3109.04. We recognize the error raised by Bond concerning the trial court's Civ.R. 60(A)
ruling, which effected a substantive change to the judgment not authorized by the rule.
The judgment of the trial court is reversed, and this case is remanded to the trial court
with instructions to vacate the judgment entry that forms the basis of this appeal and
reinstate the parenting plan affirmed in Bond I.
Judgment reversed; case remanded.
BROWN, P.J. and KLATT, J., concur.
_________________