Fowler v. Fowler

[Cite as Fowler v. Fowler, 2016-Ohio-5768.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JASON FOWLER C.A. No. 15CA0079-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
REBECCA FOWLER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 10DR0215
DECISION AND JOURNAL ENTRY
Dated: September 12, 2016
HENSAL, Judge.
{¶1} Defendant-Appellant, Rebecca Fowler, appeals from a judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, denying her motion for relief
from judgment. This Court affirms.
I.
{¶2} Ms. Fowler and her former husband divorced in 2011. The parties filed numerous
post-decree motions relating to several issues, including the shared parenting plan for their two
minor children. Relevant to this appeal, the magistrate issued an opinion on September 18, 2013,
wherein he addressed several pending motions, including Ms. Fowler’s motion to modify the
shared parenting plan, and Mr. Fowler’s motion to terminate same. The magistrate’s decision
modified the shared parenting plan, which originally allowed for equal parenting time. The trial
court adopted that magistrate’s decision that same day.
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{¶3} Mr. Fowler filed timely objections to the magistrate’s decision on September 24,
2013. Ms. Fowler then filed objections on October 3, 2013, and, on the same day, moved for an
extension of time to file a transcript as required under Civil Rule 53(D)(3)(b)(iii). The trial court
granted Ms. Fowler’s motion for an extension of time on October 15, 2013.
{¶4} Almost seven months later, on May 9, 2014, the trial court dismissed Ms.
Fowler’s objections for want of a transcript and indicated that the “Judgment Entry dated
December 20, 2014[,] adopting the Magistrate’s Decision is in full force and effect.” Addressing
the fact that its entry contained a clerical error given the fact that the magistrate issued his
decision on September 18, 2013, not on December 20, 2014 (a date that had yet to occur as of its
May 2014 entry), the trial court issued a nunc pro tunc entry on September 22, 2014, to reflect
the correct date (i.e., September 18, 2013). On October 6, 2014, Ms. Fowler again filed
objections to the magistrate’s decision, which the trial court denied on March 20, 2015.
{¶5} On May 18, 2015, Ms. Fowler moved the trial court for relief from its September
18, 2013, judgment under Civil Rule 60(B), which the trial court denied. Ms. Fowler now
appeals the denial of her motion, asserting nine assignments of error for our review. For ease of
consideration, we have rearranged and combined some of Ms. Fowler’s assignments of error.
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN DISMISSING THE APPELLANT’S
OBJECTIONS TO THE MAGISTRATE’S SEPTEMBER 18TH, 2013[,]
DECISION WITHOUT A HEARING AND WITHOUT GIVING THE
APPELLANT NOTICE AND THE ABILITY TO REMEDY THE LACK OF A
TRANSCRIPT.
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ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN APPLYING ORC 3109.04(E)(2)(b) AND NOT
ORC 3109.04(E)(1)(a) IN THE ALLOCATION OF PARENTAL RIGHTS AND
RESPONSIBILITIES IN ITS SEPTEMBER 18TH, 2013[,] MAGISTRATE’S
DECISION.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN MODIFYING THE TERMS OF THE
PARTIES’ PARENTING PLAN UNDER THE MAGISTRATE’S DECISION
OF SEPTEMBER 18TH, 2013[,] WITHOUT SHOWING HOW THE
MODIFICATION WAS NECESSARY UNDER THE STATUTORY
REQUIREMENTS OF ORC 3109.04(E)(1)(a) IN ORDER TO SERVE THE
BEST INTERESTS OF THE PARTIES’ CHILDREN.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED BY FAILING TO PROPERLY CONSIDER THE
HISTORY OF DOMESTIC VIOLENCE AGAINST THE APPELLANT BY
THE APPELLEE AS EVIDENCED BY, INTER AL[]IA, THE APPELLANT’S
CIVIL PROTECTION ORDER GRANTED BY THE SAME TRIAL COURT
ON MARCH 30TH, 2010.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT HAD
INCREASED THE DISTANCE BETWEEN THE PARTIES BY CHANGING
HER RESIDENCE.
{¶6} In her third, fifth, six, seventh, and eighth assignments of error, Ms. Fowler
challenges the magistrate’s decision – and the trial court’s adoption of same – from September
18, 2013. These assignments of error, however, are not properly before this Court because they
could have been raised on a direct appeal from the trial court’s May 9, 2014, judgment entry
denying Ms. Fowler’s objections for want of a transcript.
{¶7} As an initial matter – and to the extent that Ms. Fowler challenges the
magistrate’s factual findings – the Ohio Supreme Court has held that the “failure to file a
transcript or affidavit with the objections to a magistrate’s findings of fact constitute[s] a waiver
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of appeal of those findings.” State ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493,
2015-Ohio-2003, ¶ 13. But even if Ms. Fowler had filed a transcript (and assuming the trial
court still denied her objections), her assignments of error would still fail as untimely.
{¶8} As previously noted, the trial court denied Ms. Fowler’s objections on May 9,
2014, and issued a nunc pro tunc entry on September 22, 2014, to correct a clerical error (i.e., the
wrong date) in the former entry. The Ohio Supreme Court has stated that “a nunc pro tunc entry
by its very nature applies retrospectively to the judgment it corrects.” State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, ¶ 19. Thus, the trial court’s September 22, 2014, nunc pro tunc
entry correcting its May 9, 2014, entry related back to the May 9, 2014, entry. Ms. Fowler filed
the instant appeal in January 2016, well after the time for appealing the trial court’s May 9, 2014,
decision expired. See App.R. 4(A)(1). Her third, fifth, six, seventh, and eighth assignments of
error are, therefore, not properly before this Court and are overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN IT[]S SEPTEMBER 3RD 2015[,] DISMISSAL
OF THE APPELLANT’S CIV.R. 60(B) MOTION IN FINDING THAT “THE
CIV.R. 60(B) MOTION IS ESSENTIALLY AN APPEAL OF THE DISMISSAL
OF HER OBJECTIONS.”
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN IT[]S SEPTEMBER 3RD, 2015[,]
DISMISSAL OF THE APPELLANT’S CIV.R. 60(B) MOTION IN FINDING
THE MOTION UNTIMELY FILED.
ASSIGNMENT OF ERROR IX
THE TRIAL COURT ERRED IN DISMISSING THE APPELLANT’S CIV.R.
60(B) MOTION UNDER REASONS (4) AND (5).
{¶9} In her first, fourth, and ninth assignments of error, Ms. Fowler challenges the trial
court’s dismissal of her Rule 60(B) motion for relief from its September 18, 2013, judgment.
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More specifically, Ms. Fowler argues: (1) that the trial court erred by holding that her Rule 60(B)
motion was essentially an appeal of its denial of her objections to the magistrate’s decision; (2)
that the trial court erred by dismissing her motion under Rule 60(B)(1) as untimely; and (3) that
the trial court erred by dismissing her motion under subsections (4) and (5) because doing so
infringed upon her rights to “seek and obtain happiness” and to “enjoy her liberty in her
fundamental interest in the right to care, custody and control of her children.” We review a trial
court’s decision to grant or deny a Rule 60(B) motion under an abuse of discretion standard.
Eisel v. Austin, 9th Dist. Lorain No. 09CA009653, 2010-Ohio-816, ¶ 13. As explained below,
each of Ms. Fowler’s arguments lacks merit.
{¶10} We will first address Ms. Fowler’s argument regarding the trial court’s
characterization of her Rule 60(B) motion as an appeal of its denial of her objections to the
magistrate’s decision. Ms. Fowler argues that the trial court’s denial of her objections
constituted a dismissal without prejudice, which was not a final, appealable order. She further
argues that the trial court’s entry did not become appealable until it issued its nunc pro tunc entry
in September 2014. By that time, she argues, the thirty days within which to file an appeal had
expired and, therefore, her Rule 60(B) motion was not a misplaced attempt to appeal the denial
of her objections.
{¶11} Ms. Fowler’s argument is unpersuasive. Initially, we note that she has cited no
authority for the proposition that a trial court’s denial of a litigant’s objections to a magistrate’s
decision constitutes a non-final dismissal without prejudice. Instead, she cites Smirz v. Smirz,
9th Dist. Lorain No. 13CA010408, 2014-Ohio-3869, wherein this Court held that an “order
dismissing without prejudice Wife’s divorce action was not a final, appealable order.”
(Emphasis added.) Id. at ¶ 19. Further, as explained above, the trial court’s September 22, 2014,
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nunc pro tunc entry correcting its May 9, 2014, entry related back to the May 9, 2014, entry and
did not affect the time within which to file an appeal. See State ex rel. Womack v. Marsh, 128
Ohio St.3d 303, 2011-Ohio-229, ¶ 15, quoting State v. Yeaples, 180 Ohio App.3d 720, 2009-
Ohio-184, ¶ 15 (3d Dist.) (“A nunc pro tunc entry is the procedure used to correct clerical errors
in a judgment entry, but the entry does not extend the time within which to file an appeal, as it
relates back to the original judgment entry[.]”). As more fully explained below, Ms. Fowler’s
Rule 60(B) motion raised arguments that could have been raised on a direct appeal. Thus,
because Ms. Fowler did not appeal the trial court’s denial of her objections to the magistrate’s
decision, and because her Rule 60(B) motion raised arguments that could have been raised on a
direct appeal, we cannot say that the trial court erred when it denied her motion. Ms. Fowler’s
argument, therefore, lacks merit.
{¶12} Regarding the timeliness of her motion under subsection (1), Rule 60(B) provides
that a motion made under subsection (1) “shall be made * * * not more than one year after the
judgment[.]” Here, the trial court denied Ms. Fowler’s objections on May 9, 2014, and indicated
that its order adopting the magistrate’s decision was in full force and effect. As explained above,
while the trial court’s judgment entry initially contained the wrong date, its subsequent nunc pro
tunc entry did not affect the date of the entry. See State v. Lester, 130 Ohio St.3d 303, 2011-
Ohio-5204, ¶ 1. The trial court, therefore, did not err by holding that Ms. Fowler’s motion,
which was filed on May 18, 2015, was untimely under Rule 60(B)(1).
{¶13} Regarding the trial court’s dismissal of Ms. Fowler’s motion under subsections
(4) and (5), those sections provide that a trial court “may relieve a party * * * from a final
judgment * * *” if:
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(4) the judgment has been satisfied, released or discharged, or a prior judgment
upon which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or
(5) any other reason justifying relief from the judgment.
The trial court’s order indicates that it denied Ms. Fowler’s motion on the basis that she was
“attempting to reargue matters [that] were dismissed because of her failure to supply a
transcript[.]”
{¶14} In support of her argument that the trial court erred by denying her motion, Ms.
Fowler cites Sections 1 and 16 of Article 1 of the Ohio Constitution for the propositions that: (1)
she has a fundamental interest in the right to the care, custody, and control of her children, which
she has an inalienable right to defend; and (2) she has a right to seek and obtain happiness. In
this regard, she argues that her “liberty is denied * * * where her parenting time with her children
has been substantially decreased under the September 18, 2013 decision” and that her right to
defend that liberty is denied “where the court dismissed her objections thereby effectively
preventing her right to appeal from a nunc pro tunc entry retroactive to an unappealable
dismissal * * *.” (Emphasis original.) Regarding her right to obtain happiness, Ms. Fowler
argues that such right is infringed upon when she is “deprived of the right to the happiness of day
to day interactions with her children * * *.”
{¶15} Despite Ms. Fowler’s arguments, these issues could have been raised on a direct
appeal and are not the proper bases for relief under Rule 60(B)(4) and (5). Ward v. Hengle, 134
Ohio App.3d 347, 350 (9th Dist.1999), quoting Kelm v. Kelm, 73 Ohio App.3d 395, 399 (10th
Dist.1992) (“A motion for relief from judgment is not a substitute for an appeal, and errors which
could have been corrected by a timely appeal cannot be the predicate for a Civ.R. 60(B) motion
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for relief from judgment.”). Ms. Fowler’s first, fourth, and ninth assignments of error are
overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY SUSPENDING THE APPELLANT’S
PARENTAL RIGHTS ON OCTOBER 9TH, 2012[,] WITHOUT INDICATION
OF IMMINENT DANGER OR THREAT TO THE APPELLANT’S CHILDREN
WHICH WAS WRONGLY CALCULATED AGAINST THE APPELLANT IN
THE SEPTEMBER 18TH, 2013[,] MAGISTRATE’S DECISION.
{¶16} In her second assignment of error, Ms. Fowler argues that the trial court erred
when it suspended her parental rights on October 9, 2012. Ms. Fowler, however, has not
appealed the trial court’s October 9, 2012, judgment. Accordingly, any challenge to that
judgment is not properly before this Court. To the extent that Ms. Fowler argues that the
magistrate wrongly calculated this suspension against her in his September 18, 2013, decision,
that issue could have been raised on a direct appeal from the trial court’s May 9, 2014, judgment
denying her objections and indicating that its entry adopting the magistrate’s decision was in full
force and effect. Ms. Fowler’s second assignment of error is overruled.
III.
{¶17} Ms. Fowler’s assignments of error are overruled. The judgment of the Medina
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 Medina, 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.
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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
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.
JENNIFER HENSAL
FOR THE COURT
SCHAFER, J.
CONCURS.
MOORE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶18} I agree that Ms. Fowler’s assignments of error are properly overruled, but I would
address them differently than the majority. I would overrule Ms. Fowler’s first assignment of
error by concluding that her Civ.R. 60(B) motion was properly denied because she attempted to
use it as a substitute for an appeal from the order dismissing her objections. This conclusion
renders moot her challenges to the trial court’s additional reasons for the denial of her motion,
which she raised in her fourth and ninth assignments of error. All of the remaining assignments
of error constitute untimely challenges to prior orders, and I would overrule the remaining
assignments of error on that basis alone. Accordingly, I concur in the judgment.
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APPEARANCES:
REBECCA FOWLER, pro se, Appellant.
PAULETTE J. LILLY, Attorney at Law, for Appellee.