Phillips v. Hostetler , 2017 Ohio 2834 ( 2017 )

[Cite as Phillips v. Hostetler, 2017-Ohio-2834.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
MELISSA PHILLIPS C.A. No. 28397
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JAMES HOSTETLER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR-2013-02-0236
DECISION AND JOURNAL ENTRY
Dated: May 17, 2017
CALLAHAN, Judge.
{¶1} James Hostetler appeals from the Summit County Court of Common Pleas,
Domestic Relations Division. This Court affirms.
I.
{¶2} Mr. Hostetler and Melissa Phillips are the parents of three children. In 2013, their
marriage was dissolved by a decree incorporating their separation agreement and shared
parenting plan. In October 2015, Ms. Phillips moved to terminate shared parenting and
requested that the court also address child support.
{¶3} The matter was scheduled for an initial hearing on January 12, 2016 and
subsequently referred to mediation. In addition, a series of hearings were held before a
magistrate. As it relates to the matter on appeal, the final magistrate’s hearing was held on July
11, 2016.
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{¶4} On August 3, 2016, the magistrate issued a decision designating Ms. Phillips the
residential parent of the children, setting a visitation schedule for Mr. Hostetler, and determining
Mr. Hostetler’s child support obligation. The magistrate found that Ms. Phillips earns $32,000
annually and Mr. Hostetler earns $33,840 annually; that Ms. Phillips provides health insurance
for the children; and that “[t]he parties reached a full agreement on all parenting related issues.”
A child support computation worksheet was attached to the decision.
{¶5} Mr. Hostetler filed objections arguing that a different child support worksheet had
been relied upon at a hearing in May 2016; that his income figure in the new worksheet was
inaccurate; and that his income documents had not been provided to Ms. Phillips’ attorney until
after the hearing, and therefore, she could not have had the correct amount. Ms. Phillips
responded in opposition, noting that her attorney had received income information from Mr.
Hostetler’s employer prior to the hearing and submitted copies of those records to the court.
{¶6} The trial court overruled Mr. Hostetler’s objections. The court noted that Mr.
Hostetler had not requested a transcript of the hearing. Consequently, the court accepted the
magistrate’s findings of fact as correct. The court ordered that Ms. Phillips was the residential
parent, set a visitation schedule for Mr. Hostetler, and ordered Mr. Hostetler to pay Ms. Phillips
$706.17 per month in child support.
{¶7} Mr. Hostetler appeals raising three assignments of error.
II.
ASSIGNMENT OF ERROR NO. 1
THE MODIFICATION OF HOSTETLER’S PARENTAL TIME [WITH] HIS
CHILDREN IN THE MAGISTRATE[’]S PROVISIONAL ORDERS DURING
COURT PROCEEDINGS WAS AN ABUSE OF DISCRETION BY THE TRIAL
COURT.
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ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN THE DISREGARD FOR HOSTETLER’S
OBJECTION TO HOW INFORMATION WAS GATHERED AND
SUBMITTED BY [MS. PHILLIPS’ ATTORNEY] IN COMPLIANCE WITH
LAWS ON MODIFICATION OF PARENTING RIGHTS.
{¶8} In his first and second assignments of error, Mr. Hostetler challenges the
modification of his parental rights. This Court addresses these assignments of error together.
{¶9} As an initial matter, this Court notes that Mr. Hostetler and Ms. Phillips are each
proceeding pro se in this appeal. This Court has repeatedly observed:
[P]ro se litigants should be granted reasonable leeway such that their motions and
pleadings should be liberally construed so as to decide the issues on the merits, as
opposed to technicalities. However, a pro se litigant is presumed to have
knowledge of the law and correct legal procedures so that he remains subject to
the same rules and procedures to which represented litigants are bound. He is not
given greater rights than represented parties, and must bear the consequences of
his mistakes. This Court, therefore, must hold [pro se parties] to the same
standard as any represented party.
(Internal citations omitted.) Paintiff v. Eberwein, 9th Dist. Medina No. 14CA0117-M, 2016-
Ohio-5464, ¶ 7, quoting Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶ 3.
Accord Eslinger v. McKnight, 9th Dist. Summit No. 27649, 2015-Ohio-3446, ¶ 9.
{¶10} Under his first assignment of error, Mr. Hostetler challenges provisional orders
that were made by the magistrate between the filing of Ms. Phillips’ motion and the final hearing
on it. Under his second assignment of error, Mr. Hostetler argues that Ms. Phillips failed to
comply with Loc.R. 2.07 of the Court of Common Pleas of Summit County, Domestic Relations
Division. This Court does not reach the merits of these arguments because Mr. Hostetler did not
raise them to the trial court.
{¶11} A party must “timely advise a trial court of possible error, by objection or
otherwise” in order to preserve the issue for appeal. Goldfuss v. Davidson, 79 Ohio St.3d 116,
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121 (1997). “‘While a [party] who forfeits such an argument still may argue plain error on
appeal, this [C]ourt will not sua sponte undertake a plain-error analysis if a [party] fails to do
so.’” Hendy v. Wright, 9th Dist. Summit No. 26422, 2013-Ohio-5786, ¶ 14, quoting State v.
Cross, 9th Dist. Summit No. 25487, 2011-Ohio-3250, ¶ 41, citing State v. Hairston, 9th Dist.
Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 11.
{¶12} Civil Rule 53 addresses proceedings in matters referred to magistrates. A party
may challenge a magistrate’s order by filing a motion to set aside that order with the trial court.
Civ.R. 53(D)(2)(b). A party may challenge a magistrate’s decision by filing objections thereto.
Civ.R. 53(D)(3)(b). Objections must be specific explaining with particularity all the grounds for
the objection. Civ.R. 53(D)(3)(b)(ii). “An objection to a factual finding * * * shall be supported
by a transcript of all the evidence submitted to the magistrate relevant to that finding or an
affidavit of that evidence if a transcript is not available.” Civ.R. 53(D)(3)(b)(iii); see also Young
v. Bishop, 9th Dist. Summit No. 21025, 2002-Ohio-5944, ¶ 6. “Failure to specifically raise an
argument in an objection to a magistrate’s decision results in a forfeiture of that argument on
appeal.” Coleman v. Coleman, 9th Dist. Summit No. 27592, 2015-Ohio-2500, ¶ 9, citing Civ.R.
53(D)(3)(b)(iv).
{¶13} In the present matter, Mr. Hostetler did not move to set aside any of the
magistrate’s orders pursuant to Civ.R. 53(D)(2)(b). While he did file objections to the
magistrate’s August 3, 2016 decision, those objections concerned the child support calculation,
not the modification of his parental rights. Moreover, he has not argued plain error on appeal.
{¶14} Mr. Hostetler’s objections contained one sentence regarding visitation. He stated
that he “agreed to rotate summer schedule.” His statement that he “agreed” to this portion of the
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magistrate’s decision can hardly be viewed as an objection. He did not otherwise address his
parental time in his objections.
{¶15} Mr. Hostetler’s objections referenced two local rules of the Summit County Court
of Common Pleas, Domestic Relations Division – Loc.R. 14.01 (child support modification) and
Loc.R. 20.01 (discovery in general). By contrast, on appeal, he argues noncompliance with
Loc.R. 2.07 (post-decree motions). Not only does his argument concern a different rule, it also
involves different times. In his objections, Mr. Hostetler argued that he had not provided his
income information prior to the July 11, 2016 hearing. On appeal, he argues that Ms. Phillips
did not properly serve certain affidavits prior to the January 12, 2016 hearing.
{¶16} Finally, this Court notes that the magistrate found that “[t]he parties reached a full
agreement on all parenting related issues.” Mr. Hostetler did not challenge this factual finding in
his objections.
{¶17} Mr. Hostetler failed to raise these issues in the trial court and has not argued plain
error on appeal. Consequently, his first and second assignments of error are overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRONEOUSLY ALLOWED DOCUMENTS
PRESENTED IN SUBMISSION WITHOUT FULFILLING ITS OBLIGATION
AS ADMINISTRATOR TO THE SUPPORT NEEDS OF THE CHILDREN,
AND RELATIONSHIP TO “FATHER” SHOWING BIAS AND
DISCRETIONARY ABUSE.
{¶18} In his third assignment of error, Mr. Hostetler challenges the amount of child
support he was ordered to pay. While Mr. Hostetler had challenged his child support obligation
in his objections to the magistrate’s decision, he did so on a different basis.
{¶19} In his objections to the trial court, Mr. Hostetler challenged the income amount
used for him on the child support worksheet. By contrast, on appeal, Mr. Hostetler contends that
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the child support fails to account for “benefits [Ms. Phillips] receives from remarriage” and
questions the parties’ receipt of equal tax exemption offsets in the worksheet.
{¶20} Mr. Hostetler did not mention Ms. Phillips’ remarriage in his objections.
Regarding the tax exemptions, Mr. Hostetler stated in his objections that he “agreed to * * *
rotate tax dependency exemptions.” The magistrate’s decision and the trial court’s order provide
for this rotation. On appeal, Mr. Hostetler notes that Ms. Phillips had the tax dependency
exemption for all the children under the 2013 agreement and implies that this should impact the
current tax exemption offset.
{¶21} Although Mr. Hostetler challenged his child support obligation below, he failed to
raise the specific grounds that he is attempting to argue on appeal and he does not argue plain
error. See Civ.R. 53(D)(3)(b)(ii), (iv). Mr. Hostetler’s third assignment of error is overruled.
III.
{¶22} Mr. Hostetler’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
JAMES HOSTETLER, pro se, Appellant.
MELISSA PHILLIPS, pro se, Appellee.