Pearson v. Pearson

[Cite as Pearson v. Pearson, 2011-Ohio-4880.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
REBECCA PEARSON C.A. No. 10CA0068-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GLENN PEARSON COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 06DR0567
DECISION AND JOURNAL ENTRY
Dated: September 26, 2011
MOORE, Judge.
{¶1} Appellant, Rebecca Pearson, appeals from the judgment of the Medina County
Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} On September 14, 2006, Appellant, Rebecca Pearson (“Wife”) filed a complaint
for divorce from her husband, Appellee, Glenn Pearson (“Husband”). On September 26, 2006,
Husband filed an answer and counterclaim. After the parties conducted discovery the trial court
referred the matter to mediation. Later, the matter was stayed for a lengthy period of time due to
bankruptcy proceedings. After numerous status reviews, on May 21, 2009, the magistrate
entered an order that scheduled the uncontested divorce hearing for July 15, 2009, at 3:00 p.m.
Wife failed to appear for the hearing. At that time, the magistrate conducted a hearing at which
Husband and Kurt Card testified. On August 10, 2009, the magistrate issued a decision that
granted the parties a divorce and included a shared parenting plan.
2
{¶3} On August 18, 2009, Wife filed a pro se objection to the magistrate’s decision that
included an argument that she was unaware of the July 15, 2009 hearing. On August 19, 2009, a
notice of hearing was filed and indicated that a hearing on Wife’s objections to the magistrate’s
decision was scheduled for October 28, 2009, at 1:30 p.m. On November 18, 2009, another
notice of hearing was filed and indicated that a hearing on Wife’s objections to the magistrate’s
decision was scheduled for December 16, 2009, at 9:00 a.m. On December 30, 2009, Wife’s
counsel, retained for the October 28, 2009 hearing on Wife’s objections, filed a “motion to
supplement objections filed by [Wife] dated August 16, 2009/motion for relief pursuant to Rule
75F of the Ohio Rules of Civil Procedure/motion pursuant to rules 60(B)(1) & 60(B)(5).”
Attached to that motion was an affidavit of Wife averring that she had no counsel at the time of
the divorce hearing and that she did not receive notice of the hearing. On May 24, 2010, the trial
judge filed a judgment entry that overruled Wife’s objections, adopted the magistrate’s decision,
and separately entered judgment.
{¶4} Wife timely filed a notice of appeal. She raises one assignment of error for our
review.
II.
ASSIGNMENT OF ERROR
“[WIFE] ASSERTS THAT SHE WAS DENIED MINIMAL DUE
PROCESS BASED UPON THE FAILURE OF THE COURT TO NOTIFY
HER OF THE ‘UNCONTESTED FINAL HEARING SCHEDULED AND
HEARD ON JULY 15TH, 2009.’ [WIFE] ASSERTS THAT THE
FAILURE OF THE COURT TO NOTIFY HER OF THAT HEARING
DENIED HER OF THE MINIMAL DUE PROCESS TO WHICH SHE
WAS ENTITLED. THE TRIAL COURT’S FAILURE TO OVERRULE
THE MAGISTRATE’S ORDER, IN ITS JUDGMENT ENTRY OF MAY
24TH, 2010, CONSTITUTES AN ABUSE OF DISCRETION ON THE
PART OF THE TRIAL COURT.”
3
{¶5} In her assignment of error, Wife contends that the trial court denied her of her
minimal due process rights when it failed to notify her of the uncontested divorce hearing and
failed to overrule the magistrate’s order resulting from that hearing. We do not agree.
{¶6} This appeal arises from the trial court’s adoption of the magistrate’s decision.
Such a decision to modify, adopt, or reverse a magistrate’s decision lies within the discretion of
the trial court and should not be reversed on appeal absent an abuse of discretion. Kalail v. Dave
Walter, Inc., 9th Dist. No. 22817, 2006-Ohio-157, at ¶5, citing Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219. On appellate review, “we consider the trial court’s action with reference
to the nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M,
2009-Ohio-3139, at ¶18.
{¶7} Wife is correct in her assertion that all litigants are entitled to minimal due
process. Due process of law is guaranteed by the Fourteenth Amendment to the United States
Constitution and Section 16, Article I of the Ohio Constitution. “Due process requires that a
party receive reasonable notice of judicial proceedings and a reasonable opportunity to be
heard.” Didado v. Didado (Apr. 24, 2002), 9th Dist. No. 20832, at *1; Mullane v. Cent. Hanover
Bank & Trust Co. (1950), 339 U.S. 306, 314. Civ.R. 75(L) requires “[i]n all cases where there is
no counsel of record for the adverse party, the court shall give the adverse party notice of the
trial upon the merits. The notice shall be made by regular mail to the party’s last known address,
and shall be mailed at least seven days prior to the commencement of trial.”
{¶8} In this case, on May 22, 2009, the magistrate filed a magistrate’s order that
scheduled an uncontested divorce hearing in this matter for July 15, 2009 at 3 p.m. The bottom
of the order includes a typed notation “Cc: Rebecca Pearson” and below that, “James Palmquist,
III, Esq.” The magistrate’s decision dated August 10, 2009, that Wife concedes she received,
4
includes the same notation. The transcript of docket and journal entries in this case from the
clerk of courts office reflects that on May 22, 2009, the following was docketed regarding the
order: “Magistrate’s Order; Divorce Hearing on 7/15/09 at 3:00 P.M.; filed.” Wife filed
objections with the trial court arguing that she was not made aware of the decision. She further
argued that she had lived at the address provided to the court until July 2009, but that she was
subsequently forced to move. She conceded that she received the magistrate’s decision dated
August 10, 2009, that was mailed to her previous address. Nothing in the record indicates that
the order sent in May was returned to the clerk as undeliverable.
{¶9} Following Wife’s objections, the trial court scheduled an evidentiary hearing.
However, the parties opted to submit their arguments by briefs without an oral hearing. Neither
party submitted a brief. Husband filed a motion to dismiss on January 14, 2010. The trial court
concluded that “[t]he evidence [Wife] provided and a review of the Court’s file and computer
system reveal that she was notified of the hearing.”
{¶10} The record discloses sufficient evidence to support the conclusion that notice of
trial was mailed to and received by Wife. Although Wife filed objections, she elected not to go
forward with the evidentiary hearing and also failed to submit her arguments by brief.
Accordingly, Wife failed to present any evidence to support her contention that the notification
requirements of Civ.R. 75(L) were not followed. See Herrmann v. Herrmann (June 23, 1983),
8th Dist. No. 45843. She has similarly failed to show an abuse of discretion in trial court’s
adoption of the magistrate’s decision. Blakemore, 5 Ohio St.3d at 219. Because Wife has failed
to demonstrate noncompliance with Civ.R. 75(L), she has similarly failed to demonstrate that the
trial court failed to provide her with due process. Accordingly, Wife’s assignment of error is
overruled.
5
III.
{¶11} Wife’s assignment of error is 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.
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(E). 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.
CARLA MOORE
FOR THE COURT
BELFANCE, P.J.
CARR, J.
CONCUR
APPEARANCES:
REESE M. WINEMAN, Attorney at Law, for Appellant.
JAMES B. PALMQUIST, III, Attorney at Law, for Appellee.