Rafeld v. Sours

[Cite as Rafeld v. Sours, 2014-Ohio-4242.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TYLER J. RAFELD JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 14 COA 006
CASSIE M. SOURS NKA ZONA
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
20124138
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 25, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NO APPEARANCE L. RAY JONES
Post Office Box 592
Medina, Ohio 44258
[Cite as Rafeld v. Sours, 2014-Ohio-4242.]
Wise, J.
{¶1}. Appellant Cassie M. Sours, nka Zona appeals the decision of the Ashland
County Court of Common Pleas, Juvenile Division, which named Appellee Tyler J.
Rafeld the residential parent and legal custodian of the parties' minor daughter. The
relevant facts leading to this appeal are as follows.
{¶2}. Appellant gave birth to T.R., a daughter, in 2007. Appellant and appellee
have never been married, although it appears appellee did sign the child's birth
certificate.
{¶3}. On November 27, 2012, appellee filed a motion to allocate parental rights
and responsibilities as to T.R.1
{¶4}. On January 31, 2013, the trial court issued a judgment entry establishing
appellee as T.R.'s father. The remaining issues in appellee's motion were continued.
{¶5}. The matter proceeded to an evidentiary hearing before a magistrate on
March 12, 2013.
{¶6}. On July 5, 2013, the magistrate issued a decision recommending that
appellee be named T.R.'s residential parent and legal custodian, with specific parenting
time to appellant. The magistrate further recommended that appellee's child support
obligation would be terminated effective November 27, 2012.
{¶7}. On July 19, 2013, appellant filed an objection to the magistrate's decision.
1
Said motion is the first trial court pleading in the record before us. We have not been
provided with documentation of any earlier proceedings concerning T.R., either in court
or with a child support enforcement agency.
Ashland County, Case No. 14 COA 006 3
{¶8}. On February 20, 2014, having reviewed the transcript and record, the trial
court issued a judgment entry adopting the magistrate's decision, with the exception of
modifying summer visitation times.
{¶9}. On February 28, 2014, appellant filed a notice of appeal. She herein
raises the following three Assignments of Error:
{¶10}. “I. INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL
REPEATEDLY INFORMED DEFENDANT THAT BY LAW SHE WAS PRESUMED TO
REMAIN CUSTODIAN UNLESS SHE WAS UNFIT. HER ATTORNEY WAS
OBLIVIOUS TO ORC 3109.04, THAT THE MOTHER AND FATHER STOOD UPON
EQUALITY WHEN MAKING AN INITIAL DETERMINATION. INEFFECTIVE
ASSISTANCE SHOULD BE APPLIED TO A STANDARD CUSTODY CASE, AS WELL
AS A CASE FOR PERMANENT CUSTODY BY A PUBLIC AGENCY, SEE
SUPPLEMENTAL OBJECTIONS FILED OCTOBER 1, 2013 (#34 IN COURT'S
RECORD) AND OCTOBER 28, 2013 (#36 IN THE COURT'S RECORD).
{¶11}. “II. THE TRIAL COURT ERRED IN NOT HAVING HELD AN IN CAMERA
INTERVIEW OF THE CHILD PRIOR TO THE COURT'S OPINION AND JUDGMENT
ENTRY OF FEBRUARY 20, 2014.
{¶12}. “III. THE TRIAL COURT ERRED BY RETROACTIVELY ELIMINATING
THE APPELLEE'S CHILD SUPPORT OBLIGATION WITHOUT EVIDENCE OR
CALCULATION SHEETS IN THE RECORD TO SUPPORT SAME.”
Ashland County, Case No. 14 COA 006 4
I.
{¶13}. In her First Assignment of Error, appellant contends she was deprived of
the effective assistance of counsel during the initial custody determination regarding
T.R.
{¶14}. Appellant essentially maintains that her trial counsel was ineffective in
failing to adequately prepare for an initial custody dispute, particularly in light of R.C.
3109.042, which states as follows: "An unmarried female who gives birth to a child is the
sole residential parent and legal custodian of the child until a court of competent
jurisdiction issues an order designating another person as the residential parent and
legal custodian. A court designating the residential parent and legal custodian of a child
described in this section shall treat the mother and father as standing upon an equality
when making the designation."
{¶15}. However, we have recognized that a claim of ineffective assistance of
counsel is not a proper ground on which to reverse the judgment of a lower court in a
civil case that does not result in incarceration in its application when the attorney was
employed by a civil litigant. Phillis v. Phillis, 164 Ohio App. 3d 364, 842 N.E.2d 555,
2005-Ohio-6200, ¶ 53, citing Roth v. Roth (1989), 65 Ohio App. 3d 768, 776, 585 N.E.2d
482. While this court has allowed an exception for “ineffective assistance” claims in civil
permanent-custody appeals (see, e.g., In re Utt Children, Stark App. No. 2003CA00196,
2003-Ohio-4576, 2003 WL 22020802), this is not the case in this instance, and we find
no basis to deviate from our precedent on this issue.
{¶16}. Appellant's First Assignment of Error is therefore overruled.
Ashland County, Case No. 14 COA 006 5
II.
{¶17}. In her Second Assignment of Error, appellant contends the trial court erred
by not holding an in camera interview between the court and the child. We disagree.
{¶18}. R.C. 2151.23 specifically provides that a juvenile court shall exercise its
jurisdiction in child custody matters in accordance with R.C. 3109.04. See, e.g., In re
M.S., Jr., 8th Dist. Cuyahoga No. 99563, 2013–Ohio–4043, ¶ 8.
{¶19}. Appellant thus directs us to R.C. 3109.04(B)(1), which states as follows:
“(B)(1) When making the allocation of the parental rights and responsibilities for the care
of the children under this section in an original proceeding or in any proceeding for
modification of a prior order of the court making the allocation, the court shall take into
account that which would be in the best interest of the children. In determining the
child's best interest for purposes of making its allocation of the parental rights and
responsibilities for the care of the child and for purposes of resolving any issues related
to the making of that allocation, the court, in its discretion, may and, upon the request of
either party, shall interview in chambers any or all of the involved children regarding
their wishes and concerns with respect to the allocation.” (Emphasis added).
{¶20}. However, in the case sub judice, appellant did not request an in camera
interview until August 15, 2013, well over a month after the magistrate had issued her
decision as to the allocation of parental rights and responsibilities.
{¶21}. We note "*** [a] trial court clearly has discretion under Civ.R. 53(D)(4) to
take additional evidence before ruling on objections." Parrick v. Parrick, 3rd Dist.
Hancock No. 5–12–12, 2013-Ohio-422, ¶ 34. Where conflicts arise between the Ohio
Civil Rules and statutory law, the rule will control the statute on matters of procedure.
Ashland County, Case No. 14 COA 006 6
See Boyer v. Boyer (1976), 46 Ohio St. 2d 83, 346 N.E.2d 286. We therefore hold that a
judge's general discretion whether or not to hear additional evidence on a Civ.R. 53
objection takes precedence over the mandate of R.C. 3019.04(B)(1) where an appellant
has failed to request an in camera interview prior to the decision of the magistrate
hearing the custody issue.
{¶22}. Accordingly, upon review, we find no merit in appellant's claim that the trial
court was required to conduct an in camera interview of T.R. under the circumstances
presented. Appellant's Second Assignment of Error is overruled.
III.
{¶23}. In her Third Assignment of Error, appellant contends the trial court erred in
"retroactively eliminating" appellee's child support obligation to November 27, 2012, the
date of appellee's motion to allocate parental rights and responsibilities. We disagree.
{¶24}. In Booth v. Booth (1989), 44 Ohio St. 3d 142, 541 N.E.2d 1028, the Ohio
Supreme Court determined that the abuse-of-discretion standard is the appropriate
standard of review in matters concerning child support. In order to find an abuse of
discretion, we must determine that the trial court's decision was unreasonable, arbitrary,
or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore
(1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140.
{¶25}. In Wayco v. Wayco, 5th Dist. Stark No. 1998–CA–00279, 1999 WL
174918 (March 8, 1999), this Court held that absent special circumstances, an order of
the court modifying child support should be retroactive to the date the parties received
notice of the request for modification.
Ashland County, Case No. 14 COA 006 7
{¶26}. We note appellee asserted in his motion to allocate parental rights and
responsibilities in this matter that he had been the child's "primary caretaker." In light of
Wayco, we are unpersuaded that the trial court abused its discretion in removing
appellee's child support obligation as of the date he filed his said motion to allocate.
{¶27}. Appellant's Third Assignment of Error is overruled.
{¶28}. For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Juvenile Division, Ashland County, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0908