Slosser v. Supance ( 2021 )

[Cite as Slosser v. Supance,, 2021-Ohio-319.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Anthony Slosser, :
Plaintiff-Appellant, :
No. 20AP-15
v. : (C.P.C. No. 13JU-12252)
Alicia C. Supance et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on February 4, 2021
On brief: Dougherty, Hanneman & Snedaker, LLC, and
Douglas B. Dougherty, for appellant. Argued: Douglas B.
Dougherty.
On brief: Jessica M. Wood, for appellees. Argued:
Jessica M. Wood.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, Anthony Slosser ("Father") appeals from the
December 10, 2019 judgment entry of the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch, in which the trial court denied his motion
to set aside a September 4, 2019 magistrate's notice and granted defendant-appellee's,
Alicia Supance ("Mother"), motion to dismiss Father's objections to the August 16, 2019
magistrate's decisions. The trial court also overruled Father's objections and adopted the
August 16, 2019 magistrate's decisions. For the following reasons, we affirm in part and
reverse in part.
No. 20AP-15 2
I. Facts and Procedural History
{¶ 2} The parties were never married but are the parents of one minor child. A
shared parenting plan was filed with the trial court on April 2, 2015. The shared parenting
plan was modified on May 5, 2017. Father filed objections, but the shared parenting plan
was adopted by the trial court. Subsequently, on July 24, 2018 and January 7, 2019, the
trial court filed new shared parenting plans.
{¶ 3} On July 11, 2018 and April 26, 2019, Father filed two motions for order to
show cause why Mother should not be held in contempt related to compliance with the
shared parenting plan. On October 11, 2018, Mother also filed a motion for order to show
cause. On December 26, 2018, Father filed a motion for an award of attorney fees. A
magistrate held hearings on these matters. On August 16, 2019, the magistrate filed two
decisions. One decision denied Mother's October 11, 2018 motion for order to show cause
and denied Father's December 26, 2018 motion for attorney fees. The other decision
denied Father's two motions for order to show cause, filed July 11, 2018 and April 26, 2019.
The trial court adopted the decisions that same day, August 16, 2019.
{¶ 4} On August 23, 2019, Father attempted to e-file two requests for findings of
fact and conclusions of law regarding the magistrate's decisions. However, by e-mail, the
clerk of courts informed counsel that the filings were not accepted because motions require
a request for hearing, or a proposed order or entry be filed along with the motions. On
August 27, 2019, Father refiled the two requests along with proposed entries. One request
sought findings of fact and conclusions of law regarding the magistrate's August 16, 2019
denial of Father's two motions for contempt. The other was more limited and requested
"only" findings "pertaining to the Court's denial of [Father's] Motion for Attorneys' Fees"
filed December 26, 2018. On August 30, 2019, Mother filed a motion to dismiss the
requests on grounds of untimeliness.
{¶ 5} On September 4, 2019, the magistrate filed a "magistrate's notice," finding it
is not necessary for the magistrate to issue findings of fact and conclusions of law in
contempt proceedings, citing McCord v. McCord, 10th Dist. No. 97APF03-298 (Dec. 16,
1997). The magistrate also noted the request for attorney fees was directly related to the
contempt proceedings and there was insufficient basis to order attorney fees. The
magistrate noted the parties had competing contempt motions and there was no finding of
No. 20AP-15 3
contempt for either party. The magistrate indicated the parties were responsible for their
own attorney fees and R.C. 3105.73 was not applicable.
{¶ 6} On September 9, 2019, Father filed a motion to set aside the September 4,
2019 magistrate's notice regarding his requests for findings of fact and conclusions of law.
On September 11, 2019, Father filed objections to the magistrate's decisions issued
August 16, 2019. On September 20, 2019, Mother filed a motion to dismiss Father's
objections as untimely. Father filed a memorandum contra to Mother's motion to dismiss
the objections. On October 8, 2019, Father filed a supplemental memorandum in support
of his objections. The trial court held a hearing on October 22, 2019. On December 10,
2019, the trial court denied Father's motion to set aside the September 4, 2019 magistrate's
notice and granted Mother's motion to dismiss Father's objections to the August 16, 2019
magistrate's decisions.
II. Assignments of Error
{¶ 7} Father has filed a timely notice of appeal of the December 10, 2019 decision
and assigns the following two assignments of error for our review:
I. The trial court erred when it denied the Father's motion to
set aside the magistrate's [notice] issued on September 4,
2019 that denied the Father's request for additional findings
of fact and conclusions of law.
II. The trial court erred when it granted the Mother's motion
to dismiss the Father's objections [to the August 16, 2019
magistrate's decisions].
III. Analysis
{¶ 8} We begin by addressing the applicable general rules for filing of requests for
findings of fact and conclusions of law and objections. Then we will address the
assignments of error as applicable to the claims for contempt set forth by Father in his
motions. Finally, we will address the assignments of error as applicable to the claims for
attorney fees set forth by Father in his motions.
No. 20AP-15 4
A. General Rules for Filing of Requests for Findings of Fact and
Conclusions of Law and Filing of Objections
{¶ 9} In his first assignment of error, Father contends the trial court erred when it
denied his motion to set aside the September 4, 2019 magistrate's notice that denied his
requests for additional findings of fact and conclusions of law.
{¶ 10} Civ.R. 53 and Juv.R. 40 both provide that written objections to a magistrate's
decision must be filed within 14 days of the filing of the decision.1 However, a party may
file a request for findings of fact and conclusions of law and Civ.R. 53(D)(3)(a)(ii) provides
that a "magistrate's decision may be general unless findings of fact and conclusions of law
are timely requested by a party or otherwise required by law. A request for findings of fact
and conclusions of law shall be made before the entry of a magistrate's decision or within
seven days after the filing of a magistrate's decision. If a request for findings of fact and
conclusions of law is timely made, the magistrate may require any or all of the parties to
submit proposed findings of facts and conclusions of law." See also Juv.R. 40(D)(3)(a)(ii).2
A timely request for findings of fact and conclusions of law tolls the time for filing objections
to the magistrate's decision. Civ.R. 53(D)(3)(b)(i).3 However, if the request for findings of
fact and conclusions of law was not deemed timely filed, the request does not toll the time
for filing objections. Levy v. Ivie, 195 Ohio App.3d 251, 2011-Ohio-4055, ¶ 12 (10th Dist.);
Whiteside v. Madison Corr. Inst., 10th Dist. No. 04AP-401, 2005-Ohio-1844, ¶ 4.
1 Civ.R. 53(D)(3)(b)(i) provides: "A party may file written objections to a magistrate's decision within fourteen
days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day
period as permitted by Civ.R. 53(D)(4)(e)(i)." Juv.R. 40(D)(3)(b)(i) provides: "A party may file written
objections to a magistrate's decision within fourteen days of the filing of the decision, whether or not the court
has adopted the decision during that fourteen-day period as permitted by Juv.R. 40(D)(4)(e)(i)."
2 Juv.R. 40(D)(3)(a)(ii) provides: "Subject to the terms of the relevant reference, a magistrate's decision may
be general unless findings of fact and conclusions of law are timely requested by a party or otherwise required
by law. A request for findings of fact and conclusions of law shall be made before the entry of a magistrate's
decision or within seven days after the filing of a magistrate's decision. If a request for findings of fact and
conclusions of law is timely made, the magistrate may require any or all of the parties to submit proposed
findings of fact and conclusions of law."
3Civ.R. 53(D)(3)(b)(i) provides: "If a party makes a timely request for findings of fact and conclusions of law,
the time for filing objections begins to run when the magistrate files a decision that includes findings of fact
and conclusions of law."
No. 20AP-15 5
B. Father's Claims for Contempt
{¶ 11} In order for Father's requests for findings of fact and conclusions of law to be
considered timely, he was required to file the requests within seven days of the magistrate's
decision. Father acknowledges his requests for findings of fact and conclusions of law were
not filed within seven days of the filing of the magistrate's decisions. The magistrate's
decisions were filed on August 16, 2019. Father's requests for findings of fact and
conclusions of law were filed on August 27, 2019. Father argues the trial court should have
deemed his requests for findings of fact and conclusions of law as timely filed because he
attempted to e-file the requests for findings of fact and conclusions of law on the seventh
day, August 23, 2019. However, the clerk of courts informed counsel that the filing was not
accepted because motions require a request for hearing, or a proposed order or entry be
filed along with the motion. That same day, Father refiled the two requests with proposed
entries. Father contends the trial court failed to consider that the requests submitted on
August 23, 2019 were properly and timely filed and that the clerk of courts improperly
rejected them.
{¶ 12} The trial court provided three reasons for denying Father's motion to set
aside the September 4, 2019 magistrate's notice denying the requests for findings of fact
and conclusions of law. First, the trial court determined Father did not demonstrate
sufficient evidence for the court to find good cause and grant leave for his untimely filings.
Second, the trial court held findings of fact and conclusions of law were not necessary in
contempt proceedings and, third, the trial court found the magistrate's decision included
more than sufficient requisite findings and no additional findings were necessary. We agree
with the trial court's determination that the magistrate's decisions included more than
sufficient requisite findings and no additional findings were necessary with regard to the
claims of contempt.
{¶ 13} As noted above, Civ.R. 53(D)(3)(a)(ii) provides: "[A] magistrate's decision
may be general unless findings of fact and conclusions of law are timely requested by a party
or otherwise required by law." See also Juv.R. 40(D)(3)(a)(ii). However, Ohio courts have
determined that when a magistrate's decision substantially complies with Civ.R. 53, in the
absence of prejudice, the failure to issue additional findings of fact and conclusions of law
No. 20AP-15 6
is not reversible error. In re Appeal of Citywide Ambulance Servs. Inc. v. Dir., Ohio Dept.
of Human Servs., 10th Dist. No. 96APE08-1119 (Apr. 17, 1997).
{¶ 14} Furthermore, the purpose of separately stated findings of fact and
conclusions of law is to enable a reviewing court to determine the existence of assigned
error. Pearson v. Pearson, 10th Dist. No. 96APF08-1100 (May 20, 1997), citing Davis v.
Wilkerson, 29 Ohio App.3d 100, 101 (9th Dist.1986). In McNeilan v. Ohio State Univ. Med.
Ctr., 10th Dist. No. 10AP-472, 2011-Ohio-678, ¶ 43, this court stated that a magistrate's
decision substantially complies with Civ.R. 53, as follows:
A decision that recites various facts and legal conclusions is
sufficient when, considered with the rest of the record, it
forms an adequate basis to decide the issues on appeal.
Ferrari v. Ohio Dept. of Mental Health & Mental Retardation
(1990), 69 Ohio App.3d 541, 545, 591 N.E.2d 284. Although
Ferrari dealt with a trial court's findings of fact and
conclusions of law under Civ.R. 52, this court's reasoning
applies by logical extension to a magistrate's findings of fact
and conclusions of law under Civ.R. 53.
Thus, if a review of the magistrate's decision recites the facts and legal conclusions and,
when considered with the rest of the record, the decision forms an adequate basis to decide
the issues on appeal, it substantially complies with Civ.R. 53.
{¶ 15} In this case, although the magistrate's findings of fact were not separately set
out, the body of the decisions provide clearly identifiable factual findings and specific
conclusions of law regarding the July 11, 2018 and April 26, 2019 contempt motions:4 The
magistrate found all the pending motions before the magistrate alleged violations of the
shared parenting plan effective July 24, 2018. The magistrate briefly described the
testimony provided regarding the parties' positions as to whether Mother violated the terms
of the prior orders with respect to Father's summer parenting time in 2018 and Father's
telephone access to the child. The magistrate specifically found that the parties were
negotiating potential changes to the shared parenting plan. During those negotiations, the
parties also discussed a modification of the summer 2018 schedule where Father's time
4 These facts are taken from the magistrate's decision denying Father's motion for contempt. The magistrate
denied Mother's motion for contempt; thus, Father's motion for additional findings of fact and conclusions of
law regarding that decision is unnecessary. Father only argues regarding the findings of fact requested
regarding his motion for contempt and his motion for attorney fees.
No. 20AP-15 7
would begin and end later to accommodate a trip to Washington for Mother (Mother would
have Thursday evening through Friday evening before Memorial Day and Father would
receive a day in August). The negotiations on the potential changes to the shared parenting
plan failed but Mother testified that the one time vacation schedule change for summer
2018 was separate and distinct from the negotiations involving the potential changes to the
shared parenting plan. Mother testified she relied on Father's agreement and purchased
plane tickets to Washington.
{¶ 16} The magistrate further observed that Father also argued Mother deprived
him of his visitation time on the Wednesday before Memorial Day in 2018. Mother sent
Father an itinerary for the Washington trip indicating that she was traveling on Wednesday
night. The shared parenting plan provided that Father could exercise Wednesday parenting
time with the child if he provided a 48-hour notice. Mother testified that Father had not
been exercising his Wednesday time. However, after Father received the itinerary for the
trip, he provided his 48-hour notice. The magistrate found the basic terms of Mother's
vacation had been discussed and agreed upon before the negotiations failed regarding the
other potential changes to the shared parenting plan.
{¶ 17} The magistrate found that with respect to the telephone access, Father
typically received his court-ordered communication but from time to time calls were
missed. Mother testified regarding the various reasons calls had been missed, including a
one-time phone malfunction, the child being in bed another evening, and Father's refusal
to call anyone other than Mother, even when Father was informed that the child was in the
care of another adult. The magistrate found Father had been offered the opportunity to
contact the child through the other individuals when the child was not with Mother, but
Father refused. The magistrate acknowledged testimony was offered that Father had a
great deal of animosity toward the child's stepfather, but the magistrate believed contacting
the child via the stepfather's phone was a reasonable alternative to communicate with the
child. The magistrate determined from the testimony it appeared the missed calls were
isolated incidents and appeared to be for legitimate reasons rather than Mother interfering
with Father's communication.
{¶ 18} The magistrate found the testimony and exhibits provided sufficient evidence
of Mother's defense to any alleged contempt violations. The magistrate found Father did
No. 20AP-15 8
not meet the standard for finding Mother in contempt. Despite Father's arguments to the
contrary, the magistrate's decisions responded to all the material and determinative issues
in the case.
{¶ 19} Father acknowledges the magistrate made significant findings. However,
Father contends the magistrate should have filed supplemental findings of fact and
conclusions of law that addressed additional issues, such as the specific terms of the
agreement reached by the parties regarding the exchange of summer 2018 vacation time,
how Father recanted this agreement, whether Mother violated the court order regarding
Father's parenting time on Wednesday May 23, 2018 and if so, did Mother provide a legal
defense? Finally, Father argues the magistrate should have addressed the total number of
phone calls missed, the date of missed phone calls, the reason the phone calls were missed,
and why those missed calls did not constitute contempt. Despite Father's argument that
the findings of fact should have been more detailed, we find the magistrate's decisions
provided sufficient detail for Father to challenge by way of objections the basis for that
decision, as well as for this court to review and decide the issues on appeal. McNeilan at
¶ 43.
{¶ 20} Father argues the trial court did not address the magistrate's findings
regarding his motion for contempt. However, this is not correct. The trial court determined
the magistrate included more than sufficient requisite findings. Moreover, based on this
court's review of the record before us,5 the decisions of the magistrate and the trial court
were explicit enough to give this court a clear understanding of the facts and grounds upon
which the trial court reached its decision.
{¶ 21} Thus, we find that the magistrate's findings of fact and conclusions of law,
with regard to the claims of contempt, outlined in the August 16, 2019 magistrate's
decisions substantially complied with the rules, and additional findings of fact and
conclusions of law were not necessary. Because the magistrate provided the requisite
findings and conclusions, it is not necessary to determine, with regard to the claims of
contempt, whether Father's requests for findings was timely or whether findings of fact
and conclusions of law are required when deciding contempt motions. App.R. 12(A). The
5 Father only provided an excerpt of the transcript of the May 1, 2019 hearing. For example, no testimony from
Father's witness during the May 1, 2019 hearing was provided. The duty to provide a transcript for appellate
review falls upon the appellant. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
No. 20AP-15 9
trial court did not err when it denied Father's motion to set aside the September 4, 2019
magistrate's notice that denied Father's requests for additional findings of fact and
conclusions of law. Accordingly, Father's first assignment of error is overruled with regard
to the claims of contempt.
{¶ 22} In his second assignment of error, Father contends the trial court erred when
it granted Mother's motion to dismiss Father's objections to the August 16, 2019
magistrate's decisions. Mother argued that Father's objections to the magistrate's decisions
were untimely. Father argued the trial court should have deemed the objections timely
because he had attempted to file his request for findings of fact and conclusions of law in a
timely manner. Assuming arguendo, with regard to the claims for contempt, that Father's
request for findings of fact and conclusions of law was timely, because the magistrate had
already provided sufficient findings and conclusions in the August 16, 2019 magistrate's
decisions, the deadline for filing objections to the magistrate's decisions was not tolled.
Therefore, Father's objections, with regard to the claims for contempt, filed on
September 11, 2019, were untimely.
{¶ 23} This case is similar to Kess v. Kess, 5th Dist. No. 17 CAF 05 0076, 2018-Ohio-
1370, where the appellant had filed a timely request for findings of fact and conclusions of
law which was denied because the trial court found the magistrate's decision met the
requirements of Civ.R. 53(D)(3)(a)(ii). Then, the appellant filed objections 26 days after
the magistrate's decision was filed. The trial court rejected the appellant's objections as
untimely.
{¶ 24} The Fifth District found the magistrate made sufficient findings of fact and
conclusions of law as to the contested issues and the trial court did not err in denying the
appellant's request for findings of fact and conclusions of law. The Fifth District then
determined the appellant's objections were untimely—reasoning that the findings and
conclusions were filed the day the magistrate filed the original decision. See also
CitiMortgage v. Kinney, 8th Dist. No. 100099, 2014-Ohio-1725, ¶ 11-18; Morgan Stanley
Credit Corp. v. Fillinger, 8th Dist. No. 98197, 2012-Ohio-4295, ¶ 14-17; Whiteside v.
Madison Corr. Inst., 10th Dist. No. 04AP-401, 2005-Ohio-1844, ¶ 4 (trial court determined
untimely request for findings of fact and conclusions of law did not toll time for filing
No. 20AP-15 10
objections and magistrate's decision included sufficient findings of fact, thus, granted
motion to strike objections as untimely. This court found no abuse of discretion).
{¶ 25} We are persuaded by the Fifth District's reasoning in Kess. The plain
language of Civ.R. 53(D)(3)(a)(ii) provides that if a party requests findings of fact and
conclusions of law, the time to file objections runs when the findings of fact and conclusions
of law are filed. In this case, the findings of fact and conclusions of law, with regard to the
claims for contempt, were filed on August 16, 2019. Although Father argues the magistrate's
findings of fact and conclusions of law were insufficient, the trial court found and this court
agrees that the findings of fact and conclusions of law in the August 16, 2019 decisions were
sufficient under Civ.R. 53(D)(3)(a)(ii). Here, as in Kess, it appears Father did not agree
with the findings of fact and conclusions of law reached by the magistrate and adopted by
the trial court, but that does not impact the sufficiency of the findings of fact and the
conclusions of law issued in the magistrate's decisions. Father should have filed timely
objections to the magistrate's decisions and supplemented those objections if necessary.
We find the trial court did not err in granting Mother's motion to dismiss Father's
objections because the objections were untimely. Accordingly, Father's second assignment
of error, with regard to the claims for contempt, is overruled.
C. Father's Claims for Attorney Fees
{¶ 26} We have overruled the assignments of error with regard to Father's claims for
contempt. However, Father also requested attorney fees in his (losing) contempt motion
of July 11 and in his separate December 26, 2018 attorney fee motion that included a
request for fees in response to Mother's contempt claims. The magistrate denied both
motions in the two decisions filed August 16, 2019. However, neither decision contained
any findings of fact or conclusions of law with regard to Father's claims for attorney fees.
The facts expressed in explaining why Father lost on his own contempt motions suffice to
show why he is not entitled to fees on those matters. But his December 26, 2018 motion
also sought fees for his ultimately successful counter to Mother's contempt claims. And one
of his two August 2019 requests for findings specifically targeted the denial of that
December 26, 2018 motion for attorney fees. Compare February 25, 2020 Brief of
Appellant at 39-40 (as limited to fee request regarding only fees for defense of "Mother's
contempt motion against the Father"). Accordingly, the same reasoning addressed above
No. 20AP-15 11
regarding the sufficiency of findings of fact and conclusions of law regarding Father's claims
of contempt (targeted in Father's other request for findings) does not apply here.
{¶ 27} In the September 4, 2019 magistrate's notice, the magistrate denied the
request for findings of fact and conclusions of law with regard to the contempt claims, but
also then provided findings of fact and conclusions of law with regard to the claims for
attorney fees. The magistrate stated:
Further, the request for attorney fees at issue was directly
related to the contempt proceedings. The Magistrate found an
insufficient basis to order attorney fees as requested herein.
The parties had competing contempt motions. There was no
finding of contempt for either party. Both parties were
represented by counsel and were held responsible for their
own attorney fees. R.C. 3105.73 is not applicable under this
juvenile matter and the Magistrate does not find that the
requested attorney fees would be equitable under Franklin
County Juvenile Rule 40, or otherwise.
(Notice at 1-2.)
{¶ 28} As noted above, a timely request for findings of fact and conclusions of law
tolls the time for filing objections to the magistrate's decision. Civ.R. 53(D)(3)(b)(i)
provides: "If a party makes a timely request for findings of facts and conclusions of law, the
time for filing objections begins to run when the magistrate files a decision that includes
findings of fact and conclusions of law." (Emphasis added.) Therefore, with regard to
Father's claims for attorney fees regarding his defense against Mother's contempt claims,
we must determine whether the trial court erred or abused its discretion, when, on the
grounds of untimeliness it: (1) denied Father's motion to set aside the September 4, 2019
magistrate's notice, and (2) granted Mother's motion to dismiss Father's objections to the
August 16, 2019 magistrate's decisions. Here, timeliness of the objections depends on
timeliness of the separate request for findings of fact and conclusions of law with regard to
the attorney fee issue.
{¶ 29} As outlined above, Father attempted to file his two requests for findings of
fact and conclusions of law on August 23, 2019. Had the clerk of courts accepted such
filings, they would have been timely. But, according to Father, the clerk sent Father two e-
mails, one noted in the subject line "received notice," and the other noted in the subject line
"non-acceptance notice." (Pltf.'s Memo. Contra Mot. to Dismiss Objs., Exs. A & B.) Both
No. 20AP-15 12
e-mails identified the "document type" as a "motion." The non-acceptance notice further
stated: "All of our motions require a request for hearing or a proposed order or entry to be
filed with it." (Ex. B.) On August 27, 2019, Father refiled and included a proposed entry.
At the hearing before the trial court, Father entered these e-mails into evidence and further
stated as follows:
On August 27th, I received a rejection from the Clerk's Office
specifically from Scott Wickemeier, which I appreciate and
can put this on the record, I appreciate him putting his name
and his phone number because we don't often get that when
we get a rejection and we're kinda (sic) wondering why things
happen. So, I did contact Mr. Wickemeier at the Clerk's Office
and he said that he actually had to reject the request for the
Findings of Fact and Conclusions of Law because I needed to
attach with that an Proposed Entry requesting a hearing or a
Proposed Entry granting my request for the Findings of Fact
and Conclusions of Law. I disagree with Mr. Wickemeier just
based on my previous experience. I've never had to do that
before because we were not asking for a hearing on a request
for the Findings and Conclusions because we felt that we were
going to get the Findings and Conclusions; we don't feel that
the Magistrate had any - - had any discretion to issue those.
So also, no need to submit a Proposed Entry to grant a request
because just the issuance of the Findings and Conclusions
themselves, would be granting the request and that would just
tie off the motion. But he said he couldn't go back because the
motions - - or the request had already been denied but he said
"not a problem, go ahead and refile and just submit the
proposed entries with [y]our request for the Findings of Fact
and Conclusions of Law", which I said, "easier said than done"
because in this case I expected that there was going to be some
type of objection or some filing based upon the timeliness
issue. So, despite the fact that we feel we timely filed on
August 23rd, I refiled as soon as I spoke to Scott Wickemeier.
I refiled the same day, the same exact Findings of Fact and
Conclusions of Law, the request, but I also included Proposed
Entries then scheduling a hearing. And then you can see on
Exhibit B, where I had the rejection from Scott Wickemeier
and Exhibit C is the actual refiling then of the same motions
with the exception of the addition of the attached Proposed
Entries on August 27th. Mr. Wickemeier also did advise that
he has had this happen in the past, not just with objections but
many pleadings and it shouldn't be an issue, that all I should
have to do is provide the Court with the information and the
No. 20AP-15 13
email, which I have here, my email notification that I did
actually file on August 23rd.
(Oct. 22, 2019 Tr. at 6-8.)
{¶ 30} Father argues the clerk of courts improperly rejected the documents he filed
on August 23, 2019 and therefore the trial court abused its discretion in refusing to treat
his requests as timely filed.
{¶ 31} Father admits that his counsel "contributed to the confusion regarding the
nature of his documents by titling both of his requests for findings and conclusions as
'Motion Of Plaintiff Anthony Slosser For Findings Of Fact And Conclusions Of Law.' "
(Emphasis added.) (Appellant's Brief at 23.) Father argues however, notwithstanding how
Father titled his documents, the clerk should have determined the documents were a
"request," not a "motion," and therefore the clerk should not have rejected the documents
on grounds of not being in compliance with the rules applicable to motions.
{¶ 32} In support of his argument that the clerk improperly rejected his August 23,
2019 filings, Father argues that "[i]n determining the nature of a document a court (or a
clerk) must look at the entire document, not just the first word of the title." (Emphasis
added.) (Appellant's Reply Brief at 1.) Father's argument is based on case law holding that
the nature of a pleading is controlled by its substance rather than its caption. (See
Appellant's Reply Brief at 1, citing Properties Research, Inc. v. Young, 8th Dist. No. 49083
(May 9, 1985.) It is important to remember, however, that clerk of courts do not have the
same discretion as a court. This court recently held in Hillman v. O'Shaughnessy, 10th
Dist. No. 16AP-571, 2017-Ohio-489, ¶ 11:
[A] 'clerk of courts is a ministerial officer, one who performs a
fixed and designated function that involves no exercise of
discretion.' State v. Wilson, 102 Ohio App.3d 467, 471, 657
N.E.2d 518 (2d Dist.1995); Lingo v. State, 138 Ohio St.3d 427,
2014-Ohio-1052, ¶ 34, 7 N.E.3d 1188 ( 'A clerk of courts has
no discretion.'). He or she functions as an arm of the court,
performing such duties as retaining custody of the court's
records, filing the court's papers, and collecting costs. Wilson;
Lingo; State ex rel. McKean v. Graves, 91 Ohio St. 23, 24, 109
N.E. 528 (1914). 'The clerk is not a judicial officer, and cannot
perform judicial duties or act in exercise of the judicial power.'
Wilson at 472.
No. 20AP-15 14
{¶ 33} Keeping in mind the role and limited discretion of the clerk, we examine
several rules and administrative orders relevant to a determination of whether the clerk
improperly rejected Father's documents and whether the trial court abused its discretion
in determining Father's requests for findings of fact and conclusions of law, filed August 27,
2019, were untimely.
{¶ 34} Loc.R. 42 of the Franklin County Court of Common Pleas, Juvenile Court
("Local Juv.R.") regarding Electronic Filing states:
All documents filed electronically shall conform substantially
to the requirements of these Local Rules and the most current
version of the Court's Administrative Order Regarding
Electronic Filing of Court Documents. The filing party
(including counsel) shall be responsible for determining the
most current version of the Administrative Order and
complying with it.
{¶ 35} This court takes judicial notice that the Administrative Order in effect at the
time Father filed his requests for findings of facts and conclusions of law on August 23,
2019 was the May 23, 2017 version, Third Amended Administrative Order, Juvenile Branch
("administrative order"), In re: Electronic Filing of Court Documents, which is posted on
the trial court's website as still in effect. Several sections of the administrative order apply
here.
{¶ 36} Section II of the administrative order is titled "Definition of Terms."
Thereunder, division C states:
Clerk Review. A preliminary review of electronically
submitted documents by the Clerk in accordance with Court
rules, policies, procedures and practices. Court clerks will
preliminarily review the data and documents to ensure their
compliance with Court rules, policies and procedures prior to
accepting the documents and sending them to the Case
Management System and Document Management System. If
the submitted documents comply with the applicable Court
rules, policies and procedures, they will be accepted by the
Clerk for e-Filing. If the submitted documents do not comply
with the applicable Court rules, policies and procedures , they
will not be accepted for e-Filing and the Clerk shall notify the
filer of the deficiency or problem with the submission.
{¶ 37} Section IX of the administrative order is titled "Filing Date and Time of
Electronically Filed Documents." Thereunder, paragraphs one, two, and four state:
No. 20AP-15 15
1. The e-Filing System is hereby appointed the agent of the
Clerk for purposes of electronic filing, receipt, service and
retrieval of electronic documents. Any document submitted
electronically to Juvenile Court will not be considered filed
until accepted at Clerk Review, however once accepted it will
be deemed filed (except as provided in #3 below) and contain
an electronic stamp of the date and time it was submitted.
2. Upon receipt of submitted documents the e-Filing System
will issue a confirmation that the documents have been
received unless the user has elected not to receive email
confirmations in their profile. The confirmation shall include
the date and time of receipt. An e-Filer will receive subsequent
notification through the e-Filing System that the documents
have been accepted or rejected for filing. When accepted each
document will receive an electronic stamp. This stamp will
include the date and time the document was submitted by the
filer.
***
4. In the event the Court rejects a submitted document
following Clerk Review, the document shall not become part
of the Official Court Record and the e-Filer will be required to
re-submit the document to meet filing requirements.
(Emphasis sic.)
{¶ 38} Section XVI of the administrative order is titled "User Filing Errors and
Technical Problems." Thereunder, division A states:
User Filing Errors
Once a document is submitted and becomes part of the case
docket, corrections to the docket are made only by the Clerk's
office. A filer cannot make changes to any document once it
has been submitted and accepted for filing.
A document that is incorrectly submitted for e-Filing (e.g., as
a result of entering a wrong case number, attaching an
incorrect PDF file to a submission for e-Filing, or where the
electronic file is corrupt or unreadable) will be rejected and
the filer will be notified of the error(s) and the need to re-
submit.
If the filer discovers an error in their submission that may be
corrected, such as having chosen the incorrect document type
No. 20AP-15 16
the filer should, as soon as possible after the error is
discovered, contact the Clerk's office and provide the case
number and document number for which a correction is being
requested. If the Clerk discovers the error after it has been
accepted, the Clerk shall immediately notify the filer of the
error and the need to resubmit, if appropriate. The Clerk will
not delete the relevant docket text, but will annotate the
docket with a Notice of Correction to show the deletion, the
reason for deletion, and that the filer has been notified. If
appropriate, the Court will make an entry indicating that the
document was filed in error.
However, once a document has been accepted for e-Filing by
the Clerk, only a Judge can strike the document in the event it
has been filed in error.
{¶ 39} The documents filed by Father on August 23, 2019 were designated as
document type: motion. Regardless of whether the documents filed August 23, 2019 are
determined to be "motions" or "requests," neither the trial court nor the parties pointed to
any rule or authority for the clerk to require a request for a hearing or proposed findings in
the circumstances of this case.
{¶ 40} If deemed a motion, Mother points to Local Juv.R. 11 states in relevant part:
All Motions shall be made in writing in accordance with Rules
196 and 227 of the Ohio Rules of Juvenile Procedure unless
otherwise permitted by the Court. The Motion shall be
supported by a memorandum containing citations of
authority and may also be supported by an affidavit. Except as
provided in Local Rules 5(D) and 6(G), all pretrial Motions
shall be set for an oral hearing by the moving party and shall
be scheduled with the assignment office at the time of filing.
Except as provided in Chapter 2152 of the Ohio Revised Code,
the moving party shall give notice of hearing to all other
parties, including the Guardian ad Litem. Oral hearings may
6Juv.R. 19 states: "An application to the court for an order shall be by motion. A motion other than one made
during trial or hearing shall be in writing unless the court permits it to be made orally. It shall state with
particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be
supported by a memorandum containing citations of authority and may be supported by an affidavit.
To expedite its business, unless otherwise provided by statute or rule, the court may make provision by rule
or order for the submission and determination of motions without oral hearing upon brief written statements
of reasons in support and opposition."
7 Juv.R. 22 addresses pleadings and motions; defenses and objections. Division (D) addresses "prehearing"
motions; Division (E) addresses motion time; Division (F) addresses the state's right to appeal upon granting
a motion to suppress; and Division (G) addresses motions by alleged victim.
No. 20AP-15 17
be waived by agreement of all parties and the Trial Magistrate
or Judge.
(Emphasis added.)
{¶ 41} Local Juv.R. 11 states that "pretrial" motions shall be set for oral hearing.
However, the motion filed by Father for findings of fact and conclusions of law was filed
after the magistrate held the hearing on the motions for contempt and attorney fees.
Therefore, it appears the requirement that a request for oral argument must be filed upon
the filing of a motion does not apply in this circumstance.
{¶ 42} If deemed a "motion," Local Juv.R. 28 requires that counsel "in whose favor
an order, decree, or judgment is rendered, shall within five (5) days thereafter prepare the
proper journal entry, and submit it to the counsel for the adverse party." Local Juv.R. 28
applies once the court has rendered its ruling. The magistrate had yet to render any ruling
on the requests for findings of fact and conclusions of law. Therefore, it appears the
requirement that a proposed entry must be filed upon the filing of a motion does not apply
in this circumstance.
{¶ 43} If deemed a "request," Civ.R. 53(D)(3)(a)(ii), regarding requests for findings
of facts and conclusions of law, states:
Subject to the terms of the relevant reference, a magistrate's
decision may be general unless findings of fact and
conclusions of law are timely requested by a party or
otherwise required by law. A request for findings of fact and
conclusions of law shall be made before the entry of a
magistrate's decision or within seven days after the filing of a
magistrate's decision. If a request for findings of fact and
conclusions of law is timely made, the magistrate may require
any or all of the parties to submit proposed findings of fact
and conclusions of law.
(Emphasis added.) Juv.R. 40(D)(3)(ii) states the same. These rules authorize that a
magistrate "may" require proposed findings of fact and conclusions of law, but does not
require the same. Therefore, it appears the requirement that a proposed entry must be filed
upon the filing of a request does not apply in this circumstance.
{¶ 44} Taking all this into consideration, as neither the trial court, nor the parties
pointed us to any authority for the clerk's non-acceptance of the August 23, 2019 filings,
and our review of the Ohio Civil Rules, Ohio Juvenile Rules, and Local Juvenile Rules does
No. 20AP-15 18
not reveal any such authority under these circumstances, we determine the clerk
improperly did not accept Father's documents filed on August 23, 2019. Therefore, the trial
court erred in denying Father's motion to set aside on the grounds of untimeliness.
Accordingly, with regard to the claims for attorney fees as to which the magistrate had not
set forth sufficient facts at least until September 4, 2019, we sustain the first assignment of
error.
{¶ 45} As Father's requests for findings of fact and conclusions of law with regard to
Father's claims for attorney fees were timely filed, we must consider whether the
September 11, 2019 objections were timely filed. As noted above, Civ.R. 53(D)(3)(b)(i)
provides: "If a party makes a timely request for findings of fact and conclusions of law, the
time for filing objections begins to run when the magistrate files a decision that includes
findings of fact and conclusions of law." Juv.R. 40(D)(3)(b)(i) states in relevant part: "If a
party makes a timely request for findings of fact and conclusions of law, the time for filing
objections begins to run when the magistrate files a decision that includes findings of fact
and conclusions of law." The magistrate issued findings of facts and conclusions of law
with regard to Father's claims for attorney fees in the September 4, 2019 magistrate's
notice. Therefore, the time for filing objections with regard to Father's claims for attorney
fees began to run on September 4, 2019. Father filed his objections on September 11, 2019.
Father met the 14-day deadline for filing objections. Accordingly, with regard to the claims
for attorney fees, we sustain the second assignment of error. We remand the objections
and supplemental objections to the trial court to rule on those objections, or portions
thereof, that specifically address the magistrate's findings of facts and conclusions of law
regarding Father's claims for attorney fees with regard to his defense against Mother's
contempt claims. We do not mean by this order to preclude the trial court ultimately from
adopting an assessment similar to (or different from) that expressed in the Magistrate's
September 4, 2019 fees discussion; we mean only to say that the court's untimeliness
rationale for rejecting Father's fee claim is not tenable and the trial court must evaluate and
assess the issue within the proper framework.
IV. Conclusion
{¶ 46} For the foregoing reasons, appellant's two assignments of error are overruled
in part and sustained in part and the judgment of the Franklin County Court of Common
No. 20AP-15 19
Pleas, Division of Domestic Relations, Juvenile Branch is affirmed in part and reversed in
part and the December 10, 2019 decision and judgment entry is remanded to that court to
proceed in a manner consistent with law and this decision.
Judgment affirmed in part
and reversed in part; cause remanded.
SADLER and NELSON, JJ., concur.