Barrientos v. Barrientos , 196 Ohio App. 3d 570 ( 2011 )

[Cite as Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
BARRIENTOS,
APPELLEE, CASE NO. 5-11-22
v.
BARRIENTOS, OPINION
APPELLANT.
Appeal from Hancock County Common Pleas Court,
Domestic Relations Division
Trial Court No. 2007-DR-426
Judgment Reversed and Cause Remanded
Date of Decision: November 7, 2011
APPEARANCES:
Kelton K. Smith, for appellee.
William E. Clark, for appellant.
Case No. 5-11-22
WILLAMOWSKI, Judge.
{¶ 1} Defendant-appellant, Guillermo M. Barrientos, brings this appeal
from the judgment of the Court of Common Pleas of Hancock County, Domestic
Relations Division, granting a divorce, dividing property, and awarding spousal
support to plaintiff-appellee, Joyce A. Barrientos. For the reason set forth below,
the judgment is reversed.
{¶ 2} On August 22, 2000, Guillermo was injured in an industrial accident
and was hospitalized for three weeks. When he returned home, Joyce provided for
his care, as they had been living together for nearly two years prior to the accident.
The couple then married on October 20, 2000. A settlement agreement was
reached concerning the accident, and Guillermo received a large sum of money in
checks made out to him. The parties used the money to make various purchases,
lived on some of it, and invested some.
{¶ 3} On December 12, 2007, Joyce filed a complaint for divorce. A final
hearing was held on November 13, 2008. The magistrate issued her
recommendations on December 17, 2008. Guillermo filed objections to the
magistrate’s recommendations. On February 17, 2011, the trial court overruled
the objections and issued its decision. The trial court issued its judgment entry
granting the divorce on April 14, 2011. Guillermo appeals from this judgment and
raises the following assignments of error.
-2-
Case No. 5-11-22
First Assignment of Error
The trial court erred in applying an “abuse of discretion”
standard of review.
Second Assignment of Error
The trial court’s characterization of the settlement proceeds as
marital property is against the manifest weight of the evidence.
Third Assignment of Error
The magistrate improperly used the federal poverty level to
establish the amount of spousal support.
Fourth Assignment of Error
The duration of spousal support is unsupported by both case
law and the evidence.
{¶ 4} In the first assignment of error, Guillermo alleges that the trial court
used the wrong standard of review in evaluating the case. Guillermo alleges that
the trial court used an abuse-of-discretion standard rather than conducting an
independent review as required by Civ.R. 53(D)(4)(d):
If one or more objections to a magistrate’s decision are timely
filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the
objected matters to ascertain that the magistrate has properly
determined the factual issues and appropriately applied the law.
Before so ruling, the court may hear additional evidence but may
refuse to do so unless the objecting party demonstrates that the party
could not, with reasonable diligence, have produced that evidence
for consideration by the magistrate.
-3-
Case No. 5-11-22
Thus, the trial court’s review of a magistrate’s decision is de novo. Goldfuss v.
Traxler, 3d Dist. No. 16-08-12, 2008-Ohio-6186, ¶ 7. The trial court must
independently review the record and make its own factual and legal findings, but it
may rely upon the credibility determinations made by the magistrate. Gilleo v.
Gilleo, 3d Dist. No. 10-10-07, 2010-Ohio-5191, ¶ 47. Once the de novo review is
complete, the trial court may adopt, reject, or modify the magistrate’s decision.
Tewalt v. Peacock, 3d Dist. No. 17-10-18, 2011-Ohio-1726, ¶ 31.
{¶ 5} When reviewing the judgment of the trial court, an appellate court
uses an abuse-of-discretion standard. Id. at ¶ 11. A failure of the trial court to
conduct an independent review of the magistrate’s recommendations as required
by Civ.R. 53(D)(4)(d) is an abuse of discretion. Figel v. Figel, 3d Dist. No. 10-08-
14, 2009-Ohio-1659, ¶ 10. The appellate court must presume that a trial court has
performed an independent review of the magistrate’s recommendations unless the
appellant affirmatively demonstrates the contrary. Gilleo at ¶ 46.
{¶ 6} Here, Guillermo claims that the trial court failed to conduct an
independent review of the record. The trial court ruled on the objections to the
magistrate’s recommendations on February 17, 2011, and stated as follows:
Upon consideration of the objections to the magistrate’s
decision as filed by the Defendant the Court finds, pursuant to Rule
53(D) of the Ohio Rules of Civil Procedure as follows:
-4-
Case No. 5-11-22
The Court, in reviewing the party’s motions, finds that the
Magistrate’s findings are reasonable determinations and are not an
abuse of discretion. * * *
***
As such, the Court finds that the Magistrate’s
recommendation as to spousal support is not an abuse of discretion.
***
***
In his fifth objection, Defendant contends that the Magistrate
erred in findings that Defendant’s income was sixty thousand dollars
($60,000) prior to his work-related injury. However, in reviewing
the transcript, the Court has found testimony from both Plaintiff
* * * and Defendant * * * purporting that, prior to the injury,
Defendant’s income was at least sixty thousand dollars ($60,000) per
year. As such, the Court finds that the Magistrate’s determination
was not an abuse of discretion. Defendant’s fifth objection is found
not well taken and accordingly overruled.
In his sixth objection, Defendant contends that Magistrate’s
finding regarding Defendant’s available medical insurance benefits
was in error. The Magistrate found that Defendant had “insurance
benefits available and there was no evidence of current expense.”
* * * Having reviewed the transcript, the Court finds that Defendant
testified on direct examination that he had started receiving some
type of assistance in paying medical bills. Furthermore, the Court
found that there was no evidence of Defendant’s current medical
expense. As such, the Court finds that the Magistrate’s finding was
not an abuse of discretion. Defendant’s sixth objection is found not
well taken and accordingly overruled.
It is therefore ORDERED, ADJUDGED, and DECREED
that, pursuant to Rule 53(D) of the Ohio Rules of Civil Procedure,
that the objections of [Guillermo] to the Magistrate’s decision as
filed on December 17, 2008 are found not well taken and
accordingly overruled.
-5-
Case No. 5-11-22
(Emphasis added.)
{¶ 7} In the entry, the trial court cited the correct rule twice. However, the
trial court repeatedly appeared to be reviewing the record to determine whether an
abuse of discretion occurred. This is not the same as an independent review of the
matter and would not be proper. See Jones v. Smith, 187 Ohio App.3d 145, 2010-
Ohio-131, 931 N.E.2d 592, ¶ 14. The failure to conduct a de novo review of the
magistrate’s decision and independently evaluate the evidence and apply the law is
an abuse of discretion by the trial court. Figel, 2009-Ohio-1659, at ¶ 10. A mere
recitation of the rule number alone is not sufficient for this court to presume that
the proper standard of review was used when, as here, the opinion repeatedly
refers to how there was no abuse of discretion by the magistrate. Based upon the
language of the trial court’s decision and order of February 17, 2011, this court is
unable to determine that the proper standard of review was applied. Thus, the first
assignment of error is sustained.
{¶ 8} In the second assignment of error, Guillermo claims that the
magistrate and subsequently the trial court erred in determining that the settlement
proceeds were marital property. Guillermo claims that this determination was
against the manifest weight of the evidence. A review of the matter indicates that
the issue to be determined is which party bears the initial burden of showing that
-6-
Case No. 5-11-22
the property is either separate or marital. However, having determined that the
trial court may not have used the correct standard of review when reviewing the
magistrate’s recommendations, this issue need not be determined by this court at
this time. This court therefore makes no ruling on whether the property is separate
or marital, leaving this issue to the trial court to determine upon proper review. As
the prior findings may change upon further review, this court dismisses the second
assignment of error as moot.
{¶ 9} The third and fourth assignments of error claim that the trial court
erred in considering the federal poverty level when determining the amount of
spousal support and erred in determining the duration of the spousal support. Like
the second assignment of error, these claims are also subject to review by the trial
court on remand. They are thus moot as well, and the third and fourth assignments
of error are dismissed.
{¶ 10} For the reason set forth above, we reverse the judgment of the Court
of Common Pleas of Hancock County, Domestic Relations Division, and remand
for further proceedings.
Judgment reversed
and cause remanded.
ROGERS, P.J., and PRESTON, J., concur.
-7-