In re P.M.H. , 2019 Ohio 4908 ( 2019 )

[Cite as In re P.M.H., 2019-Ohio-4908.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
IN RE: P.M.H. C.A. No. 18AP0057
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE No. 2018 JUV-G 000266
DECISION AND JOURNAL ENTRY
Dated: December 2, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant, T.H., appeals an order of the Wayne County Court of Common Pleas,
Juvenile Division, that granted legal custody of her daughter P.M.H. to her father. This Court
affirms in part and reverses in part.
I.
{¶2} T.H. (“Mother”) and C.P. (“Father”) are the parents of P.M.H., who was four
years old at the time of the trial court proceedings in this case. Mother and Father have never
been married. In 2017, the parties obtained an administrative order for child support and medical
support from the Wayne County Child Support Enforcement Agency (“CSEA”) pursuant to R.C.
3111.81. One section of that administrative order also addressed parenting time:
In addition to the findings and provisions stated in this Order, both parties have
reviewed the Wayne County Juvenile Court’s Standard Order of Parenting Time
Local Rule 11. Both parties knowingly and voluntarily agree to be bound by the
terms of this parenting time order until further order of the Court. The Standard
Order of Parenting Time to which both parties agree and are bound is attached to
this Administrative Order, incorporated by reference, and hereby made a part of
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this Order. Both parties were informed that Wayne County Child Support
Enforcement Agency cannot assist either party with modifying or enforcing any
term in their parenting time order, but both parties have been made aware that
they may privately file a motion in Wayne County Juvenile Court if either party
wishes to modify or enforce the attached parenting time agreement.
CSEA moved the juvenile court to adopt and register the order, as required by R.C. 3111.83, and
the juvenile court granted the motion.
{¶3} On March 30, 2018, Father filed a document entitled “MOTION BY FATHER
TO CHANGE CUSTODY – MAKING FATHER THE CUSTODIAL PARENT.” In the
motion, which Father made by filling in blanks on a preprinted form prepared by the juvenile
court, Father indicated that he was the noncustodial parent pursuant to the case number assigned
to the registration of the administrative support order. Mother, in turn, filed a document entitled
“MOTION FOR CHANGE OF PARENTING TIME (COMPANIONSHIP AND VISITATION)
AND MEMORANDUM IN SUPPORT.” Like Father’s pleading, Mother’s was produced using
a form—a preprinted copy of Uniform Juvenile Form 5, approved by the Supreme Court of
Ohio. Following a pretrial appearance, the magistrate recognized that “[t]he parties informed the
court that they [had] a parenting time order from the Wayne County Child Support Enforcement
Agency.”
{¶4} During the subsequent hearing before the magistrate, Father confirmed that he
was seeking custody of P.M.H. Both parents presented testimony related to the best interests of
the child. The magistrate noted that the parties had agreed to a standard schedule of visitation
as part of CSEA’s administrative determination, but evaluated their respective motions as
requests for an initial allocation of parental rights and responsibilities. The magistrate concluded
that it was in the best interest of P.M.H. to name Father as the residential parent and to provide
Mother with parenting time as provided by local rule. The magistrate also determined that
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Mother should complete a parenting class and ordered her to pay child support to Father. The
trial court entered judgment on the magistrate’s decision pursuant to Juv.R. 40(D)(4)(e)(i).
Mother filed objections, arguing that the magistrate erred by failing to consider whether there
had been a change in circumstances; that even under a best-interests standard, Father should not
have been given custody; that Mother should not be required to complete parenting classes; and
that Mother should not have been ordered to pay child support. Mother also filed a motion for
disqualification of the magistrate based on allegations arising from an unrelated hearing. Two
months after filing her supplemental objections, Mother moved the trial court to hear additional
evidence under Juv.R. 40(D)(4)(d), arguing that additional facts relevant to the custody
determination had come to light once P.M.H. had started spending time with Father at his
residence.
{¶5} The trial court denied Mother’s motion to hear additional evidence, overruled her
objections, and entered judgment consistent with its previous decision. Mother filed this appeal.
Her five assignments of error are rearranged for purposes of discussion.
II.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING AND
FAILING TO HOLD A HEARING ON APPELLANT’S MOTION TO HEAR
ADDITIONAL EVIDENCE BEFORE RULING UPON OBJECTIONS.
{¶6} In her fifth assignment of error, Mother argues that the trial court erred by failing
to conduct a hearing on her motion for additional evidence and, ultimately, by denying that
motion before ruling on her objections.
{¶7} Juv.R. 40(D)(4)(d) requires a trial court to “undertake an independent review” of
objections and permits a trial court to hear additional evidence as part of its consideration. The
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Rule also provides, however, that the trial court “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.” Id. We review a trial court’s decision not to hear additional
evidence for an abuse of discretion. See Blausey v. Blausey, 6th Dist. Ottawa No. OT-18-039,
2019-Ohio-4506, ¶ 30; Cox v. Cox, 12th Dist. Warren No. CA2016-05-040, 2017-Ohio-1010, ¶
18.
{¶8} This Court has concluded that Juv.R. 40(D)(4)(d) “contemplates that new events
may arise or be discovered between the time of a magistrate’s decision and a trial judge’s final
judgment, and the rule provides a mechanism for the introduction of such evidence in a timely
manner.” In re A.S., 9th Dist. Summit No. 26462, 2013–Ohio–1975, ¶ 14–15. This Court has
interpreted Civ.R. 53(D)(4)(d), which is identical to Juv.R. 40(D)(4)(d), to permit trial courts to
consider “additional evidence” in the form of facts that were not in existence when a case was
heard by the magistrate. Morrison v. Morrison, 9th Dist. Summit No. 27150, 2014-Ohio-2254,
¶ 27; In re A.S. at ¶ 14-15. See also Maddox v. Maddox, 1st Dist. Hamilton No. C-140718, 2016-
Ohio-2908, ¶ 18-19.
{¶9} In the context of the allocation of parental rights and responsibilities, courts have
also observed that requiring a party to file a motion for modification of parental rights does not
substitute for hearing additional evidence before judgment is entered in the first instance. See
Maddox at ¶ 20 (“[R]equiring [the father] to file a subsequent motion for modification” based on
changed circumstances “would not be judicially economical, would place form over substance,
and would not serve the best interest of the parties’ children.”). See also Morrison at ¶ 27-28.
In this respect, this Court has concluded that both judicial economy and the best interests of a
child are better served when a trial court considers new evidence that arises after a magistrate’s
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decision, but before final judgment, at a time when the custody decision can be modified without
the need for further motions. See In re A.S. at ¶ 19-20.
{¶10} In this case, Mother requested a hearing based on new evidence related to the best
interest of P.M.H. in the trial court’s determination of parental rights and responsibilities. She
noted in her motion concerns about the safety of Father’s home and P.M.H.’s physical condition
once parenting time with Father commenced after the magistrate rendered a decision. In a
separate pleading, Mother also requested, and was granted, the appointment of a guardian ad
litem. This additional evidence was relevant to the trial court’s determination of the custody
issues in this case and, as this Court noted in In re: A.S., the best interests of P.M.H. and the
interests of judicial economy would be better served by considering this evidence in the context
of the custody determination than in the context of subsequent motions to modify custody, which
were pending when the trial court entered judgment. This Court takes no position on whether
Mother’s allegations are well-founded or regarding whether they would have an impact on the
trial court’s ultimate determination of this case. We simply conclude that circumstances
warranted a further hearing. See id. at ¶ 27. In light of our previous decisions in Morrison and
In re A.S., this Court concludes that the trial court erred by denying Mother’s motion for the trial
court to hear additional evidence under Juv.R. 40(D)(4)(d).
{¶11} Mother’s fifth assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING AND
FAILING TO HOLD A HEARING ON APPELLANT’S MOTION TO
DISQUALIFY.
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{¶12} Mother’s fourth assignment of error argues that the trial court erred by denying
her motion to disqualify the magistrate without conducting a hearing on the motion. This Court
disagrees.
{¶13} “Disqualification of a magistrate for bias or other cause is within the discretion of
the court and may be sought by motion filed with the court.” Juv.R. 40(D)(6). Although this
Court cannot review matters related to disqualification of a trial court judge, we review a trial
court’s determination of matters related to the disqualification of a magistrate for an abuse of
discretion. Lingenfelter v. Lingenfelter, 9th Dist. Wayne No. 14AP0005, 2015-Ohio-4002, ¶ 10.
An abuse of discretion is present when a trial court’s decision “‘is contrary to law, unreasonable,
not supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330,
2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶
25.
{¶14} Mother’s first argument is that the trial court erred by failing to conduct a hearing
on her motion to disqualify the magistrate. Although this Court has, on a prior occasion,
concluded that a trial court abused its discretion by denying a similar motion without conducting
a hearing, we did so “[i]n light of the record before us,” which “raise[d] numerous questions that
are not answered” about potential bias arising from the magistrate’s relationship with persons
connected to the litigation. Lingenfelter at ¶ 12, 16-17. In that case, the wife’s motion to
disqualify the magistrate alleged bias arising from the magistrate’s relationship with husband’s
parents. Id. at ¶ 12. In a recorded discussion between the magistrate and counsel, the magistrate
described that relationship, but the recording abruptly ended when the magistrate became aware
that he was still on the record. Id. at ¶ 13. Further on-the-record comments reflected the
magistrate’s opinion of the wife. Id. This Court observed that in light of the fact that resolution
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of the case rested heavily upon an assessment of credibility, the trial court abused its discretion
by denying the motion to disqualify without a hearing to develop the record on the issues. Id. at
¶ 14, 16-17.
{¶15} In this case, Mother’s motion to disqualify the magistrate was based solely on the
magistrate’s statements on the record during a hearing in which, Mother alleged, the magistrate
demonstrated bias by providing Father with legal advice. Mother’s motion did not point to any
other conduct as evidence of bias or impartiality. Consequently, there are no concerns regarding
an undeveloped and ambiguous record in this case, and this Court’s decision in Lingenfelter is
distinguishable on that basis.
{¶16} Mother’s second argument is that the trial court abused its discretion by denying
her motion to disqualify the magistrate. The Code of Judicial Conduct applies to magistrates as
well as to judges. Jud.Cond.R. Application I(B). Judges—and, therefore, magistrates—must
“uphold and apply the law, and * * * perform all duties of judicial office fairly and impartially.”
Jud.Cond.R. 2.2. Under Jud.Cond.R. 2.11(A), a judge “shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned[.]” This is an
objective standard, requiring disqualification of a judge “if a reasonable and objective observer
would harbor serious doubts about the judge’s impartiality.” In re Disqualification of Lewis, 117
Ohio St.3d 1227, 2004-Ohio-7359, ¶ 8 (analyzing Canon 3(E)(1) of the former Code of Judicial
Conduct).
{¶17} As evidence that the trial court abused its discretion, Mother points to the
transcript of a contempt hearing conducted on September 25, 2018. The hearing was held to
determine Father’s motion for contempt, which alleged that Mother failed to comply with the
trial court’s order that determined he should be the residential parent of P.M.H. The magistrate
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explained to Father that Mother’s objections to the magistrate’s decision, which were filed the
day before the transfer of custody was to have occurred, stayed execution of that judgment by
operation of Juv.R. 40(D)(4)(e)(i). Noting that the scope of Father’s pro se contempt motion was
unclear, the magistrate clarified that Father’s contempt motion referred solely to that transfer of
custody, dismissed the contempt on that basis, and informed Father that he would need to raise
other instances of alleged contempt separately. Finally, the magistrate clarified that, going
forward, the parties were following the visitation schedule previously established in the CSEA
administrative order.
{¶18} The transcript of that proceeding does not demonstrate evidence that would lead a
reasonable, objective observer to harbor serious doubts about the magistrate’s impartiality. To
the contrary, it demonstrates the magistrate’s efforts to ensure that both parties to the proceeding
understood the status of the case and to prevent future misunderstandings. The trial court did not
abuse its discretion by denying Mother’s motion to disqualify the magistrate.
{¶19} Mother’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION BY APPLYING R.C.
3109.042 AND BY FAILING TO CONSIDER WHETHER THERE WAS A
CHANGE IN CIRCUMSTANCES, WHETHER MODIFICATION WAS
NECESSARY TO SERVE THE BEST INTERESTS OF THE CHILD,
WHETHER APPELLANT AGREED TO THE CHANGE IN THE
DESIGNATION OF RESIDENTIAL PARENT, WHETHER THE CHILD WAS
PLACED IN APPELLEE’S HOME BY APPELLANT, OR WHETHER THE
HARM LIKELY TO BE CAUSED BY THE CHANGE OF ENVIRONMENT IS
OUTWEIGHED BY THE BENEFIT OF THE CHANGE IN ENVIRONMENT
TO THE CHILD PURSUANT TO R.C. 3109.04(E).
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT’S DECISION TO NAME APPELLEE RESIDENTIAL
PARENT PURSUANT TO R.C. 3109.04 WAS AN ABUSE OF DISCRETION,
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CONTRARY TO THE BEST INTERESTS OF THE CHILD, AND AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT’S DECISION DENYING APPELLANT’S MOTION FOR
CHANGE OF PARENTING TIME PURSUANT TO R.C. 3109.051 WAS AN
ABUSE OF DISCRETION, CONTRARY TO THE BEST INTERESTS OF THE
CHILD, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶20} In light of this Court’s resolution of Mother’s fifth assignment of error, her first,
second, and third assignments of error are premature.
III.
{¶21} Mother’s fifth assignment of error is sustained. Her fourth assignment of error is
overruled. Her first, second, and third assignments of error are premature. The judgment of the
Wayne County Court of Common Pleas, Juvenile Division, is affirmed in part and reversed in
part. This matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
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 Wayne, 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 equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
TODD E. CHEEK, Attorney at Law, for Appellant.
C.P., pro se, for Appellee.