Pahl v. Haugh , 2011 Ohio 1302 ( 2011 )

[Cite as Pahl v. Haugh, 2011-Ohio-1302.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
BRENT J. PAHL,
PLAINTIFF-APPELLANT, CASE NO. 5-10-27
v.
ELIZABETH K. HAUGH,
OPINION
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court,
Juvenile Division
Trial Court No. 20940287
Judgment Affirmed
Date of Decision: March 21, 2011
APPEARANCES:
John C. Filkins for Appellant
Elizabeth K. Haugh, Appellee
Case No. 5-10-27
SHAW, J.
{¶1} Plaintiff-Appellant, Brent J. Pahl (“Brent”), appeals the judgment of the
Hancock County Court of Common Pleas, Juvenile Division, overruling his objections to
the magistrate’s decision designating Defendant-Appellee, Elizabeth K. Haugh
(“Elizabeth”), the residential parent and legal custodian of their child, establishing
visitation for Brent, and ordering him to pay child support. The trial court subsequently
adopted and incorporated the magistrate’s decision in its September 7, 2010 Judgment
Entry.
{¶2} The parties’ child, Vaeda, was born in September of 2008. On August 13,
2009, Brent filed a complaint to establish parentage of Vaeda with the Hancock County
Juvenile Court. Shortly thereafter, in September of 2009, the parties ended their six-year
relationship. Elizabeth moved out of Brent’s house with Vaeda and Elizabeth’s seven-
year-old daughter, who the parties acknowledge is not Brent’s biological child and is not
the subject of these proceedings.
{¶3} On September 23, 2009, Elizabeth filed a motion for temporary orders
requesting the trial court to order temporary allocations designating a residential parent,
parenting time, child support and medical support for Vaeda. In her motion, Elizabeth
alleged that it is in Vaeda’s best interest for her to be designated the residential parent and
legal custodian, for Brent to be given visitation as the parties agree, and for Brent to pay
child support. Due to the animosity between the parties after their separation, the trial
court ordered both parties to adhere to mutual restraining orders.
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{¶4} On October 27, 2009, the parties appeared before the magistrate on the
pending motion for temporary allocation orders and the complaint to establish parentage.
Both Brent and Elizabeth testified at the hearing. On November 4, 2009, the magistrate
issued her decision which found Brent to be Vaeda’s natural father. With regard to the
issue of custody, the magistrate noted that, at the hearing, Elizabeth acknowledged Brent
is a good father to Vaeda and stated that, even though she advocated to be named the
residential parent, she believed it is in Vaeda’s best interest to have regular visitation with
Brent. To the contrary, the magistrate noted that Brent’s testimony demonstrated that he
had “nothing good to say about [Elizabeth]” and “indicated more than once that
[Elizabeth] should have no contact with Vaeda.” (Decision, Nov. 4, 1009, p.3). In
reaching her decision, the magistrate expressed specific concern with Brent’s testimony
indicating that he would not allow Elizabeth to see Vaeda if he were named residential
parent, even if visitation is in Vaeda’s best interest.
{¶5} Based on the parties’ testimony, the magistrate determined that Elizabeth
would be more likely to honor and facilitate visitation and companionship rights
approved by the court, and designated her as the temporary residential parent and legal
custodian of the parties’ child. Brent was given parenting time on Monday and
Wednesday nights from 6:00p.m. to 8:00p.m., Fridays during the day from 9:00a.m. to
3:30p.m., and alternating weekends beginning on Fridays at 9:00a.m. and ending on
Sundays at 1:00p.m. All exchanges of custody were ordered to take place at Elizabeth’s
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grandmother’s house, who was also the daycare provider for Vaeda while Elizabeth was
at work. Brent was ordered to pay temporary child support.
{¶6} Brent filed objections to the magistrate’s decision on temporary orders which
were overruled by the trial court. The magistrate’s decision was adopted and
incorporated by the trial court in a subsequent Judgment Entry.
{¶7} On January 28, 2010, Brent filed a motion to be designated residential parent
and legal custodian of Vaeda. The same day, the parties appeared in front of the
magistrate for a final determination on the issue of parental allocation and support. The
matter was continued until March 9, 2010, when the final hearing was held. Both Brent
and Elizabeth testified, in addition to several friends and family members of each party.
{¶8} On March 24, 2010, the magistrate issued her decision on the final orders.
Based on the testimony elicited at the hearings and the statutory factors enumerated in
R.C. 3109.04(F)(1), the magistrate determined that it is in the best interest of the parties’
child for Elizabeth to be designated the residential parent and legal custodian, and for
Brent to be given regular visitation time as established in the temporary orders.
{¶9} Brent was ordered to pay child support in the amount of $290.13 a month as
long as private health insurance is being provided. When private health insurance is not
being provided, the trial court ordered Brent to pay $226.96 per month in child support
and $86.25 per month for cash medical support. The magistrate ordered the support order
to remain in effect beyond Vaeda’s eighteenth birthday as long as she continuously
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attended a recognized and accredited high school on a full-time basis and to terminate on
her nineteenth birthday. The parties were each permitted to claim Vaeda as a dependent
for tax purposes with Elizabeth claiming her in odd years and Brent claiming her in even
years.
{¶10} Brent subsequently filed objections to the magistrate’s decision with the
trial court. After conducting an independent and complete review of the matter, the trial
court overruled Brent’s objections, adopting and incorporating the March 24, 2010
magistrate’s decision in its September 7, 2010 Judgment Entry. It is from this Judgment
Entry that Brent now appeals, asserting the following three assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED AS A RESULT OF ITS FAILURE TO
IDENTIFY THE APPELLANT AS THE RESIDENTIAL PARENT.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED AS A RESULT OF ITS FAILURE TO
PROVIDE APPELLANT WITH OVERNIGHT PARENTING TIME,
HOLIDAYS, DAYS OF SPECIAL MEANING, AND/OR EXTENDED
PARENTING TIME PURSUANT TO APPENDIX J OF THE LOCAL
RULES OF COURT.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED AS A RESULT OF IT ADOPTING
THE CHILD SUPPORT CALCULATION WORKSHEET WITHOUT
DEVIATION BASED UPON APPELLANT’S ADDITIONAL
PARENTING TIME WITH THE MINOR CHILD.
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First Assignment of Error
{¶11} In his first assignment of error, Brent argues that the trial court erred in
designating Elizabeth the residential parent and legal custodian of their child.
Specifically, Brent contends that the trial court overlooked the fact that he was Vaeda’s
primary caretaker during her first year of life. Brent also alleges that the testimony
before the trial court demonstrated that Elizabeth had a history of depression and alcohol
abuse which made her an unsuitable choice to be named Vaeda’s residential parent and
legal custodian.
{¶12} Custody determinations are some of the most difficult and agonizing
decisions a trial court must make, therefore, a trial court must have wide latitude in its
consideration of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-
260, 674 N.E.2d 1159. When reviewing a ruling pertaining to the allocation of parental
rights, the trial court is to be afforded great deference. Miller v. Miller (1988), 37 Ohio
St.3d 71, 523 N.E.2d 846. Thus, we will not reverse a child custody decision that is
supported by a substantial amount of competent, credible evidence absent an abuse of
discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, syllabus, 550 N.E.2d 178. The
reason for this standard of review is that the trial judge has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not translate
well on the written page. Davis, 77 Ohio St.3d at 418.
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{¶13} Initially, we note that there is no presumption that either the mother or the
father should become the residential parent; the parents stand on equal footing regarding
the final allocation of parental rights and responsibilities. R.C. 3109.03; Bechtol, supra,
at 24, 550 N.E.2d 178. In allocating custody, the trial court must determine what is in the
“best interest” of the child. See R.C. 3109.04(B). To make this determination, the trial
court must consider all relevant factors, including, but not limited to the statutory factors
listed in R.C. 3109.04(F)(1), which provide as follows:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers.*.*.* regarding the
wishes and concerns as to the allocation of parental rights and responsibilities
concerning the child, the wishes and concerns of the child, as expressed to the
court;
(c) The child’s interaction and interrelationship with the child’s parents,
siblings, and any other person who may significantly affect the child’s best
interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child
support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense
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involving any act that resulted in a child being an abused child or a neglected
child * * *;
(i) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent’s
right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F)(1).
{¶14} After applying the evidence adduced from the two days of testimony to the
relevant statutory factors listed in R.C. 3109.04(F)(1), the magistrate determined that it is
in Vaeda’s best interest to designate Elizabeth as her residential parent and legal
custodian. Even though the magistrate discussed each of the statutory factors in her
decision, there were specific factors which were especially dispositive in this case.
{¶15} Of particular importance to the magistrate was consideration of the parent
more likely to honor and facilitate court-approved parenting time rights or visitation or
companionship rights. Upon observing the demeanor and attitude of both parties in
court, as well as each party’s express statements regarding the other’s parenting abilities,
the magistrate concluded that of the two, Elizabeth would be more likely to honor and
facilitate visitation rights approved by the court. Specifically, the magistrate noted that
from “[Brent’s] affect in Court it should be found that he has anger issues.” (Decision,
Mar. 24, 2010). The magistrate also indicated that Brent’s demeanor in the courtroom
demonstrated that he became extremely heated throughout the course of the proceedings.
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{¶16} Throughout his testimony, Brent launched personal attacks against
Elizabeth regarding what he characterized as her “infidelities” and “belligerent” behavior,
which he attributed to her alleged chronic alcohol abuse. Notably, Elizabeth denied
having a drinking problem and being unfaithful to Brent. Moreover, the record is devoid
of any credible evidence substantiating Brent’s allegations.
{¶17} With regard to the allocation of parental rights, the testimony demonstrated
that Brent was initially steadfast in his position that Elizabeth should have no contact
with Vaeda and that he would discourage Vaeda’s relationship with Elizabeth until she
was at least no longer an infant. However, after being further questioned on this issue,
Brent begrudgingly conceded that he would permit Elizabeth to have contact with Vaeda,
if he was ordered to by the court.
{¶18} In support of his stance, Brent maintained that Elizabeth had not been a
parent to eighteen-month-old Vaeda and that as a result, he had been Vaeda’s primary
caretaker for the majority of her first year of life. Brent made allegations that Vaeda was
not safe in Elizabeth’s care. However, Brent admitted that he had no contact with
Elizabeth since she moved out of his house months earlier due to the parties’ use of
Elizabeth’s grandmother as the go-between for exchanging custody of Vaeda, which also
served to alleviate the necessity of having to interact with one another. Accordingly,
Brent acknowledged that he had no personal knowledge of Vaeda’s situation under
Elizabeth’s care since the separation—i.e. whether her new home was safe or whether
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Vaeda’s needs were adequately being met by Elizabeth. When questioned why he
believed Elizabeth should not be Vaeda’s residential parent and legal custodian, Brent
claimed that he is “the child’s mother and father” and returned to discussing Elizabeth’s
alleged infidelities and alcohol abuse as the basis for why she is not a suitable parent.
(Tr. p. 33).
{¶19} To the contrary, Elizabeth’s testimony demonstrated that, even though she
had no contact with Brent, she believed it would be in Vaeda’s best interest to have both
her parents involved in her life. Elizabeth admitted that she believed Brent is a good
father to Vaeda, however, her primary concern with Brent as a parent were his “states of
rage” and “anger issues.” (Tr. at 149). While disputed by the parties, Elizabeth also
testified that Brent had been physically abusive. Elizabeth recalled one time in mid-
December of 2009, after the parties separated and during the pendency of these
proceedings, where she claimed that Brent broke-down her front door in the middle of the
night and attacked her while the children were sleeping upstairs. Elizabeth submitted
pictures to the court depicting her bruised face and two black eyes. Even though Brent
denied physically abusing Elizabeth in general, let alone on this occasion, Elizabeth’s
mother took the stand and corroborated much of Elizabeth’s testimony, stating that hours
after the alleged incident occurred, she observed the damage to Elizabeth’s front door,
noting that it appeared to have been kicked-in and was barely attached to the doorframe.
Elizabeth’s mother also testified that she took Elizabeth to the hospital to get treatment
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for the injuries to her face after the alleged attack. Elizabeth explained that, despite her
altercations with him in the past, she did not believe that Brent would ever hurt either of
her children.
{¶20} Elizabeth also addressed Brent’s contention that he was Vaeda’s primary
caretaker for the first year of her life. Elizabeth explained that she suffered from post-
partum depression after Vaeda’s birth, and she admitted that Brent was helpful with
caring for the children during this time. Furthermore, it is undisputed by the parties that
Brent stayed home with the children for several months while he was unemployed and
Elizabeth worked. However, Elizabeth denied Brent’s assertions that she was an
absentee mother.
{¶21} In addition, the testimony revealed that Vaeda had a great relationship with
her seven-year-old half-sister, Brooklyn. The two girls shared a room in Elizabeth’s
home and interacted well like typical siblings. Elizabeth explained that she was open to
permitting Brent to have more visitation with Vaeda in the future, however her primary
concern was that because Vaeda was still very young, she would be better served have a
consistent routine in her sleeping arrangements. Therefore, Elizabeth advocated for the
custody arrangements to remain in place as stated in the temporary orders until Vaeda
reached an older age where a consistent sleep routine was not so important.
{¶22} Another statutory factor relied upon by the magistrate was the consideration
of the mental health of the parties. The magistrate specifically noted that Brent admitted
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to self-medicating with a prescription drug. Brent testified that he had been diagnosed
with depression in 2001 and given a prescription for Abilify to cope with the condition.
However, Brent admitted that it had been two years since he was under a doctor’s care to
monitor his prescription drug use. Specifically, Brent explained that it was too expensive
to get the prescription from a doctor; as a result he now buys samples of Abilify from a
friend who sells him 30 packs of 7 pills, which Brent “stockpiles” in his medicine
cabinet. (Tr. p. 73-77).
{¶23} Both Elizabeth and Brent alleged that the other drank too much. When
questioned on the matter, Elizabeth admitted to consuming alcohol two or three times a
month, while Brent admitted to consuming alcohol every other day. Both parties
indicated that they believed the other was minimizing their actual use in their stated
answers. However, most of the testimony recounted instances of the parties’ alleged
alcohol abuse that occurred in the past, in many cases before Vaeda was born. Given that
the parties had no contact with each other for several months since their separation; much
of the testimony was not probative in depicting the parties’ current lifestyles and present
ability to care for their child.
{¶24} After reviewing the record before us, we conclude that the record contained
a substantial amount of competent, credible evidence to support the magistrate’s decision
that it is in Vaeda’s best interest to designate Elizabeth the residential parent and legal
custodian. Accordingly, we find that after completing an independent review of the
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record, the trial court did not abuse its discretion in overruling Brent’s objections and
affirming the magistrate’s decision.
{¶25} Brent’s first assignment of error is overruled.
Second Assignment of Error
{¶26} In his second assignment of error, Brent argues that the trial court erred
because it failed to provide him with overnight parenting time, holidays, days of special
meaning, and/or extended parenting time pursuant to Appendix J of the local rules of
court.
{¶27} At the outset, we note that pursuant to App.R. 16(A)(7) we are not required
to address arguments that have not been sufficiently presented for review or supported by
proper authority. In presenting his argument for this assignment of error, Brent neglects
to cite any legal authority which supports his position that the trial court was required to
provide him parenting time in the manner he alleges. Accordingly, it is well within our
authority to disregard this assignment of error. See App.R. 12(A)(2). Nevertheless, in
the interests of justice, we elect to proceed by addressing Brent’s second assignment of
error.
{¶28} The trial court’s establishment of a non-residential parent’s visitation rights
is within its sound discretion, and will not be disturbed on appeal absent a showing of an
abuse of discretion. Fordham v. Fordham, 3rd Dist. No. 8-08-17, 2009-Ohio-1915, ¶ 18,
citing Appleby v. Appleby (1986), 24 Ohio St.3d 39, 41, 492 N.E.2d 831. An abuse of
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discretion connotes that the trial court’s attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d
1140.
{¶29} Section 3109.12 of the Revised Code governs a trial court’s order granting
parenting time or companionship rights or visitation rights when the parents of the child
are unmarried. The statute permits the parent of the child to file with the trial court a
complaint requesting reasonable parenting time. R.C. 3109.12(A). The court may grant
parenting time rights or companionship or visitation rights if it determines that it is in the
best interest of the child. R.C. 3109.12(B). The statute references the factors listed in
R.C. 3109.051(D) as a guideline for determining whether a parent’s request for
reasonable parenting time is in the best interest of the child. The factors of particular
relevance to this case include:
(1) The prior interaction and interrelationships of the child with the child’s
parents, siblings, and other persons related by consanguinity or affinity * * *;
(2) The geographical location of the residence of each parent and the
distance between those residences * * *;
(3) The child’s and parents’ available time, including, but not limited to,
each parent's employment schedule, the child’s school schedule, and the
child's and the parents’ holiday and vacation schedule;
(4) The age of the child;
***
(7) The health and safety of the child;
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(8) The amount of time that will be available for the child to spend with
siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time and to
facilitate the other parent’s parenting time rights * * *;
***
(16) Any other factor in the best interest of the child.
R.C. 3109.051(D).
{¶30} Based on the evidence presented, Brent was given parenting time on
Monday and Wednesday nights from 6:00p.m. to 8:00p.m., Fridays during the day from
9:00a.m. to 3:30p.m., and alternating weekends beginning on Fridays at 9:00a.m and
ending on Sundays at 1:00p.m After reviewing the record before us, it is clear that the
magistrate considered the requisite factors in establishing a parenting time schedule that
would be in Vaeda’s best interest. Throughout the custody proceedings, the parties kept
the same work schedule. Brent worked four days consisting of ten hour shifts Monday
thru Thursday, which gave him Fridays off. As a result, Brent had visitation with Vaeda
every Friday. The magistrate specifically stated in her decision that if Brent’s
employment scheduled changed, visitation should be revisited.
{¶31} The testimony indicated that Elizabeth and Brent lived within blocks of
each other on the same street. Elizabeth’s grandmother, who acted as the point of
custody exchange between the parties, lived next-door to Brent. Therefore, transportation
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to facilitate the parties exercising their parenting time was not an issue of concern before
the court.
{¶32} In addition, as mentioned above, Elizabeth expressed her concern to the
court about extending Brent’s overnight visits with Vaeda during the week while she was
still very young. Moreover, the record demonstrated that Elizabeth’s seven-year-old
daughter was Vaeda’s only sibling.
{¶33} Finally, the record demonstrated that the parties followed the parenting
schedule in place by the temporary orders without issue. Even though the parties
maintained no contact with each other, they demonstrated that they were willing to put
their differences aside to let the other parent spend time with Vaeda. In particular, the
record demonstrates that the parties were able to agree on a holiday schedule for
Thanksgiving, which occurred on a day that Brent did not have visitation, and Christmas,
both of which occurred during the pendency of the custody proceedings. The testimony
indicated that the parties could agree on visitation, which permitted both parents to spend
time with Vaeda on these days, despite no order establishing a holiday schedule in place
at the time.
{¶34} As to this point, we note that Brent takes particular issue with the fact
neither the magistrate nor the trial court specified a holiday visitation schedule, but rather
left holiday visitation to the discretion of the parties as they agree. However, Brent
provides us with no authority mandating holiday visitation be established by the court.
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Moreover, neither R.C. 3109.12 nor R.C. 3109.051 requires the trial court to specify a
holiday visitation schedule. Rather to the contrary, where the record demonstrates that
the parties are willing to and, in fact, have agreed to visitation in the past, it is sufficient
for the court to specify visitation “as the parties agree.” See Gaul v. Gaul, 11th Dist. No.
2009-A-0011, 2010-Ohio-2156,¶ 40; see also, Deckerd v. Deckerd (Dec. 18, 1996), 7th
Dist. No. 95-CO-33; Farias v. Farias (Dec. 10, 1992), 5th Dist. No. 92-CA-61. Given
the fact that the parties have demonstrated that they can agree to holiday visitation, we do
not find that the absence of a holiday schedule in the final orders constitutes an abuse of
discretion.
{¶35} Our review of the record reveals that the trial court thoroughly considered
the necessary factors in establishing a parenting time schedule for the parties in this case.
Moreover, the record supports the magistrate’s conclusion that the parenting time
schedule as devised in the final orders is in the best interest of the parties’ child.
Therefore, we cannot find that the parenting time order in the magistrate’s decision and
the trial court’s subsequent adoption of the order to be an abuse of discretion.
{¶36} Accordingly, Brent’s second assignment of error is overruled.
Third Assignment of Error
{¶37} In his third assignment of error, Brent argues that the trial court erred in
calculating his child support. Specifically, Brent maintains that the trial court should
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have granted a deviation in the calculation of child support based upon the amount of his
extended parenting time.
{¶38} Generally, an appellate court reviews the trial court’s decision concerning
child support for an abuse of discretion. Booth v. Booth (1989), 44 Ohio St.3d 142, 144,
541 N.E.2d 1028. The amount of child support calculated using the child support
guidelines and worksheet is rebuttably presumed to be the correct amount of child
support. R.C. 3119.03. The trial court may order an amount that deviates from the
worksheet amount if such amount would be “unjust or inappropriate and would not be in
the best interest of the child.” R.C. 3119.22. Moreover, the party asserting that a
deviation is warranted bears the burden of presenting evidence that proves the calculated
amount is unjust, inappropriate, or not in the best interest of the child. See Mitchell v.
Mitchell, 11th Dist. 2009-L-124, 2010-Ohio-2680, ¶ 30; see also Albright v. Albright, 4th
Dist. No. 06CA35, 2007-Ohio-3709, at ¶ 7.
{¶39} Extended parenting time is one of the factors the trial court may consider in
deciding whether to deviate from the amount calculated in the child support worksheet.
See R.C. 3119.23(D). The term “extended parenting time” generally contemplates
something more than parenting time during the standard visitation schedule established
by the court for all non-custodial parents. See Albright, supra, quoting Harris v. Harris,
11th Dist. No.2002-A-81, 2003-Ohio-5350, at ¶ 44 (where visitation schedule did not
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differ in any meaningful way from standard parenting visitation schedule, trial court erred
in deviating from child support guidelines).
{¶40} Here, the parenting time granted to Brent is substantially similar to the
standard visitation schedule in the local court rules. Moreover, other than stating that
extending parenting time is a factor the court may consider in deciding whether a
deviation is warranted, Brent presents no evidence to suggest that the child support order
as stated in the final orders is unjust or inappropriate and would not be in his child’s best
interest.
{¶41} Accordingly, we find that the magistrate’s child support award adopted by
the trial court is not arbitrary, unreasonable or unconscionable and, therefore, not an
abuse of discretion.
{¶42} Brent’s third assignment of error is overruled.
{¶43} For the reasons stated above, the judgment of the Hancock County Juvenile
Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, J., concurs.
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ROGERS, P.J., concurring separately.
{¶44} I concur with the result reached by the majority. I write separately only to
comment on procedural irregularities and an apparent lack of concern by counsel and the
trial court as to rules of procedure.
{¶45} The majority refers at paragraph 6 to Brent’s “objections” to the
“magistrate’s decision on temporary orders,” and subsequent adoption of temporary
orders by the trial court in a “Judgment Entry.” These were the attorneys’ and trial
court’s designations of various documents filed in the trial court, and with which I take
exception.
{¶46} Both the Ohio Rules of Civil Procedure and the Ohio Rules of Juvenile
Procedure contain provisions for a magistrate to issue temporary orders and the
provisions are essentially the same. Civ.R. 53(D)(2) and Juv.R. 40(D)(2). Each Rule
calls for the issuance of a Magistrate’s Order, not a Decision. Each then provides for a
“motion to set aside magistrate’s order,” not objections. Civ.R. 53(D)(2)(b) and Juv.R.
40(D)(2)(b). A “motion to set aside does not stay the effectiveness of the magistrates
(sic) order, though the magistrate or the court may by order stay the effectiveness of a
magistrates (sic) order.” Civ.R. 53(D)(2)(b) and Juv.R. 40(D)(2)(b).
{¶47} Further, a trial court’s order resolving a motion to set aside magistrate’s
order is not a judgment within the meaning of the Civil Rules, but is merely an order and
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should be designated as such to avoid confusion with a final (or appealable) order which
would be properly designated as a judgment. Civ.R. 54(A) provides as follows:
“Judgment” as used in these rules includes a decree and any order
from which an appeal lies as provided in section 2505.02 of the Revised
Code. A judgment shall not contain a recital of pleadings, the
magistrate's decision in a referred matter, or the record of prior
proceedings.
Civ.R. 54(A). In other words, a judgment is an appealable order, otherwise referred to as
a final order, and frequently designated a final appealable order, which latter term I find
to be unnecessarily repetitive.
{¶48} Finally, although it does not make any difference to the case at bar, I would
point out that Juv.R. 1(C) specifically provides that the Juvenile Rules do not apply to
“proceedings to determine parent-child relationships,” which is the nature of the action in
this case. Juv.R. 1(C)(4).
/jlr
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