Ramsey v. Ramsey

[Cite as Ramsey v. Ramsey, 2014-Ohio-1921.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kristin June Ramsey, :
Plaintiff-Appellee, : No. 13AP-840
(C.P.C. No. 08 DR 3858)
v. :
(REGULAR CALENDAR)
James Ray Ramsey, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 6, 2014
Friedman & Mirman Co., LPA, Scott N. Friedman and
Elizabeth A. Johnson, for appellee.
James R. Ramsey, pro se.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, James R. Ramsey, appeals from a judgment entry of
the Franklin County Court of Common Pleas, Division of Domestic Relations, granting
the post-decree motion for modification of parental rights and responsibilities of
plaintiff-appellee, Kristin Ramsey (n.k.a. Montgomery). Because the trial court did not
err in granting appellee's motion for modification and in awarding appellee attorney fees,
we affirm.
I. Facts and Procedural History
{¶ 2} Appellant and appellee were married and divorced twice. As part of their
January 29, 2009 decree of divorce, the parties entered into an agreed shared parenting
plan for their minor daughter born on September 26, 1996.
No. 13AP-840 2
{¶ 3} On April 22, 2011, appellee filed a post-decree motion to modify the shared
parenting plan. The trial court appointed a guardian ad litem ("GAL") for the minor child.
On February 14, 2012, appellant filed a motion for a continuance in conjunction with a
motion requesting the removal of the GAL and a motion for psychological evaluations of
the parties. Following a February 17, 2012 hearing, the magistrate denied and dismissed
all three of appellant's motions in an order dated February 22, 2012.
{¶ 4} Also on February 22, 2012, the trial commenced on the various underlying
motions. Testimony continued February 23 and 29, and March 1, 21, and 22, 2012 before
the magistrate. On March 23, 2012, the magistrate conducted an in camera interview of
the minor child. The GAL filed a preliminary report on February 13, 2012 and a second
report and recommendation on February 22, 2012.
{¶ 5} On March 2, 2012, after the trial had commenced, defendant filed a motion
to set aside the magistrate's February 22, 2012 order denying his motions for removal of
the GAL and for psychological evaluations. Both parties submitted proposed findings of
fact and conclusions of law on May 7, 2012.
{¶ 6} On June 27, 2012, appellant's counsel filed a motion to withdraw as counsel
of record, and the trial court approved his request in a June 29, 2012 judgment entry.
Since that time, appellant has proceeded in this action pro se.
{¶ 7} The magistrate issued a final decision on August 2, 2012 which granted
appellee's motion to modify the shared parenting plan, denied appellee's motion to
reallocate the GAL fees, denied both parties' motions for attorney fees, and denied
appellee's motion for Civ.R. 11 sanctions. The trial court adopted the magistrate's final
decision through a judgment entry dated August 6, 2012.
{¶ 8} On September 4, 2012, appellant filed objections to the magistrate's
decision after the expiration of the 14-day time limit in Civ.R. 53(D)(3)(b)(i). The
following day, September 5, 2012, appellant filed a notice of appeal with this court
appealing the trial court's August 6, 2012 judgment entry. This court ultimately dismissed
that appeal by journal entry dated April 8, 2013 as not being ripe for consideration due to
the pending objections in the trial court. (Case No. 12AP-775.)
{¶ 9} In response, appellee filed an October 3, 2012 motion to dismiss appellant's
objections to the magistrate's decision as untimely, as well as a motion for attorney fees.
No. 13AP-840 3
Appellant then filed amended objections to the magistrate's decision on October 30, 2012,
and filed a transcript of the proceedings before the magistrate on November 5, 2012
without obtaining leave of court for either of those untimely filings. He also filed a
transcript of the in camera interview of the minor child on November 6, 2012.
{¶ 10} Appellant proceeded to file various motions, including a motion for
contempt against appellee, a motion to add the former GAL as a party, a motion to compel
discovery, a motion for attorney fees, and motions to strike various items from the record.
On November 15, 2012, the trial court appointed a new GAL in response to appellant's
motion for dismissal of the first GAL.
{¶ 11} Appellee also filed various motions, including a motion to modify the child
support and tax dependency exemption provisions of the shared parenting plan, a motion
for contempt against appellant, a motion for attorney fees, and motions to compel
discovery.
{¶ 12} On May 20, 2013, the newly appointed GAL filed a report recommending
the allocation of parental rights and responsibilities from the August 6, 2012 entry and
decision be approved. Following a May 29, 2013 hearing, the trial court overruled
appellant's objections and upheld the magistrate's decision modifying the shared
parenting plan, journalizing its decision on August 23, 2013. In that same judgment
entry, the trial court granted appellee's motion for attorney fees, ordering appellant to pay
$650.00 per month for 30 months. Appellant timely appeals.
{¶ 13} After appellant filed his notice of appeal with this court, the parties have
continued to file various motions in the trial court. In particular, appellant filed an
October 9, 2013 motion for recusal or disqualification of the magistrate, followed by an
amended motion for recusal or disqualification on October 30, 2013. The parties agree
that appellant also filed a Civ.R. 60(B) motion for relief from judgment based upon
alleged ex parte communications between the magistrate and the first GAL, but that
motion is not part of the record before us. As a result of these various motions, the trial
court determined at a November 5, 2013 hearing that all Franklin County domestic
relations magistrates and judges should be recused, and the trial court assigned a visiting
judge to the case going forward.
No. 13AP-840 4
II. Assignments of Error
{¶ 14} Appellant assigns the following errors for our review:
[1.] The trial judge failed to perform a de novo review of the
magistrate's decision.
[2.] The trial magistrate based her ruling on ex parte
communications.
[3.] The trial court failed to address appellant's amended
objections.
[4.] The trial court improperly applied R.C. 3109.04(E)(2)(b).
[5.] The trial court failed to properly apply the best interest
test required by R.C. 3109.04(F)(1).
[6.] The trial court's attorney fee award is not properly based
on case record.
[7.] The trial court abused its discretion when it overruled
appellant's motion to remove the GAL.
[8.] The trial court abused its discretion when it modified the
529 plan provision of the parties' SPP.
[9.] The trial court engaged in a pattern of conduct which
denied appellant's right to due process.
III. First Assignment of Error – De Novo Review of Magistrate's Decision
{¶ 15} In his first assignment of error, appellant contends the trial court erred
when it failed to conduct a de novo review of the magistrate's findings of fact and
conclusions of law. More specifically, appellant argues the trial court did not review the
transcript of the proceedings before the magistrate.
{¶ 16} In reviewing objections to a magistrate's decision, the trial court has the
ultimate authority and responsibility over the magistrate's findings and rulings. Sweeney
v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 13, quoting Hartt v. Munobe,
67 Ohio St.3d 3, 5-6 (1993). The trial court must undertake an independent review of the
magistrate's report to determine any errors. Hartt at 5-6, citing Normandy Place Assoc.
v. Beyer, 2 Ohio St.3d 102 (1982), paragraph two of the syllabus.
No. 13AP-840 5
{¶ 17} When reviewing a magistrate's decision, the trial court does not sit in the
position of an appellate court. Sweeney at ¶ 14, citing Wolff v. Kreiger, 48 Ohio App.2d
153, 155-56 (8th Dist.1976). Instead, the trial court must conduct a de novo review of the
facts and conclusions in the magistrate's decision. Id., citing DeSantis v. Soller, 70 Ohio
App.3d 226, 232 (10th Dist.1990). As the ultimate finder of fact, the trial court must
make its own factual determinations through an independent analysis and should not
adopt the magistrate's findings unless the trial court fully agrees with them. Id., citing
DeSantis at 232. It is the trial court's obligation to determine whether the magistrate
properly determined the facts and applied the appropriate law. If the trial court
determines, in its judgment, the magistrate has failed to do so, the trial court must
substitute its judgment for that of the magistrate. Id., citing Coronet Ins. Co. v. Richards,
76 Ohio App.3d 578, 585 (10th Dist.1991).
{¶ 18} Civ.R. 53(D)(3)(b)(i) provides that "[a] party may file written objections to a
magistrate's decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i)." If a party objects to a factual finding, whether or not it is specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), the objection "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). In the absence of both a transcript and an affidavit, the trial court must
accept the magistrate's findings of fact and may only examine the legal conclusions drawn
from those facts. Ross v. Cockburn, 10th Dist. No. 07AP-967, 2008-Ohio-3522, ¶ 5, citing
Forth v. Gerth, 10th Dist. No. 05AP-576, 2005-Ohio-6619, ¶ 9, quoting Carter v. Le, 10th
Dist. No. 05AP-173, 2005-Ohio-6209, ¶ 11.
{¶ 19} It is undisputed that appellant did not timely file either his objections or the
transcript of proceedings in support of his objections under Civ.R. 53. Appellee argues
that because appellant did not obtain leave of court to file these items past the 14-day
deadline, the trial court should have dismissed appellant's objections. If it did not dismiss
appellant's objections, appellee argues the trial court nonetheless was not required to
review the transcript filed well outside the time limit in Civ.R. 53.
No. 13AP-840 6
A. Untimely Objections
{¶ 20} A court is not required to address untimely objections. Tomety v. Dynamic
Auto Serv., 10th Dist. No. 09AP-982, 2010-Ohio-3699, ¶ 13. If a party fails to file written
objections within the requisite 14 days but files objections after the expiration of the 14-
day period and before the court's entering final judgment, the court may consider the
objections sua sponte, and such consideration will be construed as the granting of leave to
file late objections pursuant to Civ.R. 6(B). Patrick v. Ressler, 10th Dist. No. 04AP-149,
2005-Ohio-4971, ¶ 21, citing Baker v. Baker, 68 Ohio App.3d 402, 405 (6th Dist.1990).
{¶ 21} Here, the trial court stated in its judgment entry that appellant's objections
"should be dismissed for failure to timely file his objections * * * as well as for failure to
file a transcript of the proceedings." (R. 546, at 2.) Rather than dismissing appellant's
objections on that basis, however, the trial court decided that "in the interests of justice" it
would "address [appellant's] objections on their merits." (R. 546, at 2.) We construe the
trial court's decision to consider appellant's untimely objections "in the interests of
justice" as the trial court implicitly granting leave to file outside the time constraints of
Civ.R. 53. See, e.g., THC Piketon v. Edwards, 10th Dist. No. 07AP-554, 2007-Ohio-6601,
¶ 12. The trial court acted within its considerable discretion in considering appellant's
untimely objections sua sponte. We must nonetheless determine, however, whether the
trial court abused its discretion in sua sponte considering appellant's untimely objections
without also sua sponte considering the untimely filed transcript in support of those
objections.
B. Untimely Transcript
{¶ 22} The trial court noted that appellant untimely filed his objections and further
noted appellant "failed to file a transcript of the proceedings before the Magistrate."
(R. 546, at 2.) Appellant did in fact file the transcript on November 5, 2012,
approximately two months after he filed his objections.
{¶ 23} Ordinarily, a trial court must consider a submitted transcript before ruling
on objections to a magistrate's decision. Perry v. Joseph, 10th Dist. No. 07AP-359, 2008-
Ohio-1107, ¶ 20, citing State v. Daskalov-DeBlanco, 10th Dist. No. 96APA04-529
(Nov. 21, 1996). See also Lassiter v. Lassiter, 1st Dist. No. C-020494, 2003-Ohio-2333, ¶
9 (noting "courts have held that a trial court abuses its discretion in ruling on objections
No. 13AP-840 7
involving factual determinations without reviewing the transcript of the hearings before
the magistrate"). While nothing in Civ.R. 53 prohibits or otherwise limits the trial court's
ability to sua sponte consider an untimely filed transcript, nothing in Civ.R. 53 requires a
trial court to consider an untimely filed transcript even where it sua sponte considers
untimely filed objections. See Tewalt v. Peacock, 3d Dist. No. 17-10-18, 2011-Ohio-1726, ¶
26. The trial court has broad discretion in considering objections and transcripts filed
outside the time limits set forth in Civ.R. 53; accordingly, we cannot say the trial court
here abused its discretion in considering and ruling upon appellant's objections without
considering the untimely transcript, especially where the trial court expressly noted the
objections centered on the application of the statute. It was within the trial court's
discretion to consider and rule upon appellant's objections without reviewing the
untimely transcript of proceedings, and the trial court did not abuse its discretion by
basing its ruling solely on the magistrate's decision. H.L.S. Bonding Co. v. Fox, 10th Dist.
No. 03AP-150, 2004-Ohio-547, ¶ 12. Accordingly, appellant's argument that the trial
court did not conduct a de novo review of the proceedings before the magistrate is without
merit.
{¶ 24} We overrule appellant's first assignment of error.
IV. Second Assignment of Error – Ex Parte Communications
{¶ 25} Appellant argues in his second assignment of error the trial court erred in
adopting the magistrate's decision because the magistrate based that decision on ex parte
communications. Both parties agree appellant's second assignment of error is the subject
of a pending Civ.R. 60(B) motion in the trial court, and, as such, it is not appropriate for
our review at this time. We overrule appellant's second assignment of error.
V. Third Assignment of Error – Amended Objections
{¶ 26} In his third assignment of error, appellant argues the trial court failed to
address appellant's amended objections to the magistrate's decision. Appellant filed his
amended objections on October 30, 2012, more than two months after the magistrate's
decision and well outside the time constraints of Civ.R. 53(D)(3)(b)(i). Though appellant
did not seek leave of court for the untimely filing of his supplemental objections, appellant
now argues the trial court's failure to rule on his amended objections renders the trial
court's judgment incomplete and asserts it is thus not a final appealable order.
No. 13AP-840 8
{¶ 27} As we have already explained in our discussion of appellant's first
assignment of error, the trial court is not required to address untimely objections to a
magistrate's decision. Tomety at ¶ 13. Although the trial court did not explicitly state it
was refusing to consider appellant's amended objections as untimely, Civ.R. 53(D)(4)(d)
requires only that the trial court rule on timely filed objections. While a trial court cannot
implicitly deny timely filed objections, there are no such restrictions on untimely filed
objections. In re A.V., 10th Dist. No. 12AP-300, 2012-Ohio-6162, ¶ 9. See also In re
K.L.S., 11th Dist. No. 2011-T-0077, 2012-Ohio-2563, ¶ 36 (finding no error in the trial
court implicitly denying the appellant's untimely request for findings from the
magistrate's decision). Thus, the trial court did not err in failing to consider appellant's
untimely filed supplemental objections.
{¶ 28} We overrule appellant's third assignment of error.
VI. Fourth Assignment of Error - Trial Court's Application of R.C. 3109.04(E)
{¶ 29} In his fourth assignment of error, appellant asserts the trial court
misconstrued R.C. 3109.04(E) as it applies to this case. More specifically, appellant
argues the trial court should not have applied the "best interest of the child" standard in
R.C. 3109.04(E)(2)(b) and, instead, should have made a finding of a "change in
circumstances" under R.C. 3109.04(E)(1)(a) before it modified the parties' shared
parenting plan. The question of whether the trial court correctly interpreted and applied
a statute is a question of law, and we review it de novo. State v. Willig, 10th Dist. No.
09AP-925, 2010-Ohio-2560, ¶ 14.
{¶ 30} Divorce and ancillary custody actions are purely matters of statute. Hanna
v. Hanna, 177 Ohio App.3d 233, 2008-Ohio-3523, ¶ 9 (10th Dist.). In reviewing statutes,
we are required " 'to give effect to the words used and not to insert words not used.' " In
re James, 113 Ohio St.3d 420, 2007-Ohio-2335, ¶ 13, quoting State ex rel. Richard v. Bd.
of Trustees of Police & Firemen's Disability & Pension Fund, 69 Ohio St.3d 409, 412
(1994).
{¶ 31} R.C. 3109.04(E) governs the post-decree modification of parental rights and
responsibilities. Under R.C. 3109.04(E)(1)(a), the court may not modify "a prior decree
allocating parental rights and responsibilities unless it finds, based on facts that have
arisen since the time of the decree or were unknown to it at that time, not only that a
No. 13AP-840 9
change has occurred in circumstances of the child, the child's residential parent, or either
parent subject to a shared-parenting decree, but also that the modification of the prior
custody decree is necessary to serve the best interest of the child." James, at paragraph
one of the syllabus. Further, R.C. 3109.04(E)(2)(b) provides the court "may modify the
terms of the plan for shared parenting approved by the court and incorporated by it into
the shared parenting decree upon its own motion at any time if the court determines that
the modifications are in the best interest of the children or upon the request of one or
both of the parents under the decree," and the court "shall not make any modification to
the plan under this division, unless the modification is in the best interest of the children."
{¶ 32} Here, appellant argues the trial court incorrectly applied R.C. 3109.04(E)
when it granted appellee's motion to modify the shared parenting plan. In modifying the
amount of parenting time allocated in the shared parenting plan, the trial court agreed
with the magistrate that the amount of parenting time is a "term" of a shared parenting
plan subject to modification under R.C. 3109.04(E)(2)(b). Appellant asserts that
allocation of parental time is such a basic and fundamental "parental right and
responsibility" that it is subject to modification only under R.C. 3109.04(E)(1)(a). Under
the original shared parenting plan, the parties had equal parenting time, whereas under
the trial court's modification to the shared parenting plan, appellant receives only one-
third of the total parenting time. According to appellant, this modification is so
significant as to require the change of circumstances test contemplated in R.C.
3109.04(E)(1)(a).
{¶ 33} In its decision in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589,
the Supreme Court of Ohio considered the meaning of "parental rights and
responsibilities" as it is used in R.C. 3109.04. In Fisher, the Supreme Court determined
"parental rights and responsibilities reside in the party or parties who have the right to the
ultimate legal and physical control of a child." Id. at ¶ 22. Thus, "[w]hen a court
designates a residential parent and legal custodian, the court is allocating parental rights
and responsibilities" and must use the "change in circumstances" test from R.C.
3109.04(E)(1)(a). Id. at ¶ 23.
{¶ 34} Based on Fisher, the trial court concluded R.C. 3109.04(E)(1)(a) only
controls when the court modifies the designation of residential parent and legal
No. 13AP-840 10
custodian. Appellant contends that while the designation of residential parent and legal
custodian falls under R.C. 3109.04(E)(1)(a), the statute is not limited to only that
designation and, even if it is so limited, the reduction in his parenting time is an effective
change in the designation of residential parent and legal custodian.
{¶ 35} We do not agree with appellant's interpretation of Fisher and R.C.
3109.04(E). The Supreme Court in Fisher explained, "custody" is not limited to one
parent, but " 'resides in the party or parties who have the right to ultimate legal and
physical control of a child.' " Id. at ¶ 22, quoting In re Gibson, 61 Ohio St.3d 168, 171
(1991). In a shared parenting situation, both parents are the residential parents and legal
custodians, and both parents "share all or some of the aspects of the physical and legal
care of the child in accordance with the approved plan for shared parenting." Id. at ¶ 24,
citing Braatz v. Braatz, 85 Ohio St.3d 40, 44 (1999). The Supreme Court then explained
the distinction between a shared parenting "plan" and a shared parenting "order," noting
that the "designation of residential parent and legal custodian can be modified under R.C.
3109.04(E)(1)(a)" but that modifications under R.C. 3109.04(E)(2)(b) are for "terms of a
shared-parenting plan." Id. at ¶ 27. A "plan" provides for the implementation of the
court's shared parenting order. Id. at ¶ 30.
{¶ 36} The "terms" of a shared parenting plan include " 'provisions covering all
factors that are relevant to the care of the children, including, but not limited to,
provisions covering factors such as physical living arrangements, child support
obligations, provision for the children's medical or dental care, school placement, and the
parent with which the children will be physically located during legal holidays, school
holidays, and other days of special importance.' " Id. at ¶ 28, quoting R.C. 3109.04(G).
Thus, as the trial court noted, the change to the amount of time the minor daughter will
be physically located with defendant is a modification to a "term" of a shared parenting
plan, and thus fell under R.C. 3109.04(E)(2)(b) and did not require a finding that a
change of circumstances had occurred. Even though the minor child may spend more
time with appellee under the modification, both parents retain their joint designation of
residential parent and legal custodian.
{¶ 37} While our court has never addressed the issue of whether a reduction in
parenting time under a shared parenting plan requires a finding of a change in
No. 13AP-840 11
circumstances, appellant relies on the Ninth District's decision in Gunderman v.
Gunderman, 9th Dist. No. 08CA0067-M, 2009-Ohio-3787, which held that, even in light
of Fisher, "a request for a change in parenting time is a request to alter the physical
control of the child and thus constitutes a request to modify the allocation of parental
rights and responsibilities." Gunderman at ¶ 23.
{¶ 38} Other appellate districts, however, reach the opposite conclusion. For
example, the Fourth District in Picciano v. Lowers, 4th Dist. No. 08CA38, 2009-Ohio-
3780, concluded that while a reduction in the mother's parenting time may deprive the
mother "of a substantial amount of time that she otherwise would have enjoyed with the
child, the modification does not deprive her of her parental rights and responsibilities"
because the trial court's decision did not "modify the child's residential parent or legal
custodian." Picciano at ¶ 24. Thus, the Fourth District determined the best interest
standard in R.C. 3109.04(E)(2)(b) controls the analysis of the change in parenting time,
not the change in circumstances requirement of R.C. 3109.04(E)(1)(a). Id.{¶ 39} Similarly, the Third District has determined that if a court "is only seeking
to change the method of implementation of a shared parenting plan" by decreasing the
father's parenting time to approximately 36 percent of the total parenting time, then,
under Fisher, the modification "does not change the designation of who is the residential
parent," and thus the standard articulated in R.C. 3109.04(E)(2)(b) applies. Sanders-
Bechtol v. Bechtol, 3d Dist. No. 5-08-08, 2009-Ohio-186, ¶ 15-18.
{¶ 40} While we recognize other appellate districts are split on this issue, we agree
with the interpretation of Fisher adopted by the Third and Fourth Districts and find
unpersuasive the Ninth District's interpretation of the holding of Fisher in determining
when R.C. 3109.04(E)(1)(a) or 3109.04(E)(2)(b) applies. Accordingly, we conclude the
trial court did not err in applying the best interest standard of R.C. 3109.04(E)(1)(a) in
modifying the shared parenting plan.
{¶ 41} Appellant's fourth assignment of error is overruled.
VII. Fifth Assignment of Error – Best Interest of the Child
{¶ 42} In his fifth assignment of error, appellant argues the trial court failed to
properly evaluate the best interest of the child.
No. 13AP-840 12
{¶ 43} In determining the best interest of the child, the trial court considers
multiple factors in R.C. 3109.04(F). Geier v. Swank, 186 Ohio App.3d 497, 2010-Ohio-
627, ¶ 13 (10th Dist.). While the court is bound to follow R.C. 3109.04, it has broad
discretion in determining the appropriate allocation of parental rights and
responsibilities. H.R. v. L.R., 181 Ohio App.3d 387, 2009-Ohio-1665, ¶ 13 (10th Dist.).
We will not disturb the trial court's decision to modify the parties' shared parenting plan
absent an abuse of discretion. Geier at ¶ 13.
{¶ 44} Appellant contends the trial court "failed to discover evidence in the record"
that would have caused the trial court to deviate from the magistrate's findings.
(Appellant's brief, at 47.) Appellant argues that because the trial court failed to consider
his amended objections, the trial court prevented appellant from demonstrating that the
magistrate precluded appellant from providing evidence at the hearing that was relevant
to the best interest determination.
{¶ 45} In our discussion of appellant's third assignment of error, we determined
the trial court did not err in not considering appellant's amended objections as those
objections were untimely. Civ.R. 53(D)(3)(b) bars a party from raising any error on
appeal pertaining to a trial court's adoption of any finding of fact or conclusion of law by a
magistrate unless that party timely objected to that finding or conclusion as required
under the rule. Triplett v. Warren Corr. Inst., 10th Dist. No. 12AP-728, 2013-Ohio-2743,
¶ 14.
{¶ 46} The failure to file timely objections to a magistrate's decision under Civ.R.
53(D)(3)(b) constitutes the waiver of the right to appellate review of all but plain error.
Id. at ¶ 15. Courts are to recognize plain error in civil cases "with the utmost caution,
limiting the doctrine strictly to those extremely rare cases where exceptional
circumstances require its application to prevent a manifest miscarriage of justice, and
where the error complained of, if left uncorrected, would have a material adverse effect on
the character of, and public confidence in, judicial proceedings." Goldfuss v. Davidson,
79 Ohio St.3d 116, 121 (1997).
{¶ 47} Appellant fails to point to any specific examples of the evidence he claims
the trial court failed to evaluate, nor does appellant explain how the evidence properly
before the trial court did not support the trial court's best interest determination.
No. 13AP-840 13
Appellant's unparticularized suggestion that other evidence may have supported a
different outcome does not create an exceptional circumstance rising to the level of plain
error. Thus, we overrule appellant's fifth assignment of error.
VIII. Sixth Assignment of Error – Attorney Fees
{¶ 48} Appellant argues in his sixth assignment of error that the trial court erred in
awarding attorney fees to appellee. Specifically, appellant alleges the attorney fees award
was based on inaccurate information in the record.
{¶ 49} In a post-decree motion of proceeding arising out of an action for divorce, a
court may award all or part of reasonable attorney fees and litigation expenses to either
party if the court finds the award equitable. R.C. 3105.73(B). In determining whether the
award is equitable, "the court may consider the parties' income, the conduct of the parties,
and any other relevant factors the court deems appropriate, but it may not consider the
parties' assets." R.C. 3105.73(B). An award of attorney fees under R.C. 3105.73 lies within
the sound discretion of the trial court, and we will not reverse an award of attorney fees
absent an abuse of that discretion. Huffer v. Huffer, 10th Dist. No. 09AP-574, 2010-
Ohio-1223, ¶ 19.
{¶ 50} Appellant first asserts the trial court erroneously relied upon the
magistrate's findings of fact as to appellee's income and the income of appellee's spouse.
Appellant suggests a review of the transcript of proceedings before the magistrate would
have revealed that mistake, especially when compared with appellee's financial affidavit of
February 27, 2013. As we noted in our discussion of appellant's first assignment of error,
appellant failed to timely file a transcript of the proceedings before the magistrate. Where
an objecting party does not timely file a transcript of proceedings to support his
objections, the trial court must accept the magistrate's findings of fact. Ross at ¶ 5.
Further, R.C. 3105.73(B) permits, but does not require, a trial court to consider the
parties' income in determining the propriety of an award of attorney fees. Padgett v.
Padgett, 10th Dist. No. 08AP-269, 2008-Ohio-6815, ¶ 12. Thus, even if appellant is
correct that the trial court incorrectly determined appellee's income in granting appellee's
motion for attorney fees, the trial court was not required to make any finding on income.
{¶ 51} Appellant next argues the trial court erred in accepting an unsupported
claim from opposing counsel that appellee had paid over $100,000.00 in attorney fees.
No. 13AP-840 14
The trial court may rely on its own experience and knowledge to determine the
reasonableness of the amount of fees claimed. Long v. Long, 10th Dist. No. 11AP-510,
2012-Ohio-6254, ¶ 20. Considering this case's long history and the trial court's familiarity
with the case, the trial court was able to assess the effectiveness of appellee's counsel and
the reasonableness of the fees requested. Id.{¶ 52} In considering the statement from appellee's counsel regarding the amount
appellee had spent on fees, the trial court noted the child's age and that the child has
"repeatedly and unwaveringly informed the [two] guardians, a psychologist, the
Magistrate (and virtually anyone else who would listen) that she did not want to spend the
amount of time with [appellant] that he requested." (R. 544, Aug. 23, 2013 judgment
entry, at 8.) The trial court further considered that appellant proceeded pro se and did
not have to exhaust the same financial resources as appellee, as well as appellant's general
conduct throughout the "highly contested litigation." (R. 544, at 8.) A trial court does not
abuse its discretion in considering both a party's litigation and non-litigation conduct in
determining whether an award of attorney fees is equitable. Padgett at ¶ 15. Ultimately,
the trial court concluded appellant's "behavior in repeatedly filing essentially the same
motions, an unripe appeal and his extra-curricular activities in actively impugning
[appellee's] attorney and the previous Guardian to parties not involved in this case
warrants an award of attorney fees." (R. 544, at 10.) The trial court ordered appellant pay
appellee the sum of $650.00 per month for a period of 30 months. Given the record
before us, the trial court did not abuse its discretion in granting appellee's motion for
attorney fees.
{¶ 53} Appellant's sixth assignment of error is overruled.
IX. Seventh Assignment of Error – GAL
{¶ 54} In his seventh assignment of error, appellant argues the trial court abused
its discretion when it overruled appellant's motion to remove the GAL. Further, appellant
argues the trial court erred when it allowed admission of the GAL's report.
{¶ 55} A trial court may remove a GAL for failing to discharge his or her duties. In
re A.L., 10th Dist. No. 07AP-638, 2008-Ohio-800, ¶ 23, citing R.C. 2151.281(D). An
appellate court reviews a court's grant or denial of a motion to remove a GAL under an
No. 13AP-840 15
abuse of discretion standard. Id., citing In re Morgan, 3d Dist. No. 9-04-02, 2004-Ohio-
4018, ¶ 59.
{¶ 56} Appellant filed a motion to dismiss Mary Beth Fisher as the GAL on
February 14, 2012 based on his general dissatisfaction with the GAL's recommendations.
The magistrate denied that motion and proceeded with the scheduled hearing. The GAL
filed her second report and recommendation on February 22, 2012. On March 2, 2012,
appellant filed a motion to set aside the magistrate's order denying his motion to remove
the GAL. While the motion to set aside the magistrate's order was still pending, the
magistrate reviewed the GAL's second report and recommendation as part of the basis for
the magistrate's findings of fact.
{¶ 57} One of appellant's objections to the magistrate's decision was the
magistrate's reliance on the GAL's report while the motion to set aside the magistrate's
denial of appellant's motion for removal of the GAL was still pending. In its August 23,
2013 judgment entry, the trial court explained appellant's objection regarding the GAL
had "become a legal nullity" because GAL Fisher was removed from the case after the
magistrate's decision and subsequently replaced by GAL Stephen Daulton on
November 15, 2012. (R. 544, at 3.) Because GAL Fisher had been removed from the case,
the trial court correctly determined that appellant's motion to remove GAL Fisher had
been rendered moot.
{¶ 58} Appellant nonetheless argues the magistrate should not have relied on GAL
Fisher's report in reaching its decision as appellant still sought the GAL's removal from
the case, and therefore it was error for the trial court to subsequently rely on the
magistrate's decision. Appellant complains of various perceived deficiencies in GAL
Fisher's methods of issuing her report and recommendation.
{¶ 59} R.C. 3109.04(F)(2) dictates that a court, in determining whether shared
parenting is in the best interest of a child, "shall consider all relevant factors" including
"[t]he recommendation of the guardian ad litem of the child." R.C. 3109.04(F)(2)(e).
While a court must consider the recommendation of a guardian ad litem, a court is not
bound by such a recommendation. Geier at ¶ 21, citing In re Baby C., 10th Dist. No.
05AP-1254, 2006-Ohio-2067, ¶ 95.
No. 13AP-840 16
{¶ 60} In addition to the report and recommendation of GAL Fisher, the trial court
also considered the parents' wishes, the child's wishes expressed in her in camera
interview, and noted the child's age, explaining to appellant that parenting a then-sixteen-
year-old child presents a much different set of circumstances than parenting a preschool-
aged child. Based on all of these factors, not just on the recommendation of the GAL, the
trial court concluded the modification to the shared parenting plan was in the child's best
interest.
{¶ 61} Given the variety of factors the trial court considered in reaching its decision
to affirm the magistrate's modification of the shared parenting plan, the trial court did not
abuse its discretion in considering GAL Fisher's report and recommendation. As
appellant concedes, the trial court does not indicate how much weight it placed on GAL
Fisher's report. Further, even if it was error for the magistrate to consider GAL Fisher's
report, GAL Daulton had replaced GAL Fisher before the trial court reached its decision
and made the same recommendations as to parenting time as GAL Fisher. GAL Daulton
conducted an independent, thorough investigation and considered the best interest
factors as stated in R.C. 3109.04(F)(2) before issuing his recommendation. Thus, the trial
court here did not abuse its discretion in modifying the shared parenting plan consistent
with the recommendation of not one but two GALs.
{¶ 62} We overrule appellant's seventh assignment of error.
X. Eighth Assignment of Error – 529 Plan Account
{¶ 63} Appellant argues in his eighth assignment of error that the trial court
abused its discretion when it modified the provisions of the shared parenting plan related
to the 529 Plan account maintained for the minor child's benefit.
{¶ 64} Where a shared parenting plan addresses a 529 Plan account, the 529 Plan
account is a "term" of the shared parenting plan. Ramsey v. Ramsey, 9th Dist. No. 25810,
2012-Ohio-1715, ¶ 11. Pursuant to R.C. 3109.04(E)(2)(b), the trial court has the authority
to modify the terms of the shared parenting plan upon the request of one or both parties
or upon its own motion. We review the trial court's decision to modify the terms of a
shared parenting plan for an abuse of discretion. Wolf-Sabatino v. Sabatino, 10th Dist.
No. 10AP-1161, 2011-Ohio-6819, ¶ 78.
No. 13AP-840 17
{¶ 65} According to the magistrate's decision, the parties testified they had
differing views of when a disbursement from the 529 Plan account was permissible. The
evidence indicated appellant had previously refused to approve disbursements for another
child. Additionally, the parties agreed the funds for the 529 Plan were the result of a gift
from appellee's family. Appellee asked the court to modify the shared parenting plan to
make appellee the sole owner of the minor child's 529 Plan account so that appellee alone
could mange the plan until the child turns 18, at which time appellee intends to turn
control of the 529 Plan account over to the child. It is from this testimony that the
magistrate approved the modification of the 529 Plan account and the trial court
subsequently adopted that modification as its own. Appellant does not indicate how this
decision is an abuse of the trial court's discretion other than to indicate he disagrees with
the result.
{¶ 66} Appellant asserts, however, that the 529 Plan account was part of a larger
financial settlement in the parties' divorce. After a trial court issues a divorce decree, the
trial court lacks jurisdiction to modify or amend the marital property division unless the
decree expressly reserves jurisdiction or the parties expressly consent in writing to the
modification. Cameron v. Cameron, 10th Dist. No. 12AP-349, 2012-Ohio-6258, ¶ 10,
citing R.C. 3105.171(I). Thus, if the divorce decree divided the 529 Plan account as part of
the parties' division of property, then the trial court did not retain jurisdiction to modify
that division.
{¶ 67} Here, the divorce decree ordered the division of the parties' property,
including real estate, automobiles, household goods, and various financial accounts. The
divorce decree divided the parties' property interests in investment accounts, retirement
accounts, and checking and saving accounts. While the divorce decree makes no specific
mention of the 529 Plan account, it does state each party shall retain any other "account of
any kind now registered in his or her name." (R. 70, Separation Agreement, at 4.)
{¶ 68} By contrast, the shared parenting agreement dedicates a separate section to
"[The Minor Child]'s 529 College Savings Plan and Payment of [The Minor Child]'s
College." (R. 49, at 11.) The shared parenting plan describes the establishment of the 529
Plan account as a reflection of the parties' desire "to help each of their children pay for a
college education" and provides the parties "shall maintain all 529 accounts jointly, and
No. 13AP-840 18
neither shall disburse money from those accounts to the children, or any third party,
without the written permission of the other parent." (R. 49, at 11.) Based on the plain
language of these two documents, the accounts discussed in the divorce decree
contemplate personal financial accounts while the 529 Plan in the shared parenting
agreement specifically contemplates education expenses for the minor child. Thus, we do
not agree with appellant that the 529 Plan was part of the division of property in the
divorce decree.
{¶ 69} The trial court properly construed the 529 Plan as a term of the shared
parenting agreement subject to modification under the best interest of the child standard.
Accordingly, the trial court did not abuse its discretion in modifying the terms of the
shared parenting plan related to the management of the 529 Plan account.
{¶ 70} Appellant's eighth assignment of error is overruled.
XI. Ninth Assignment of Error –Due Process
{¶ 71} In his ninth and final assignment of error, appellant asserts the trial court
engaged in a pattern of conduct that denied appellant his right to due process. Although
the argument is not clear in his brief, appellant suggests the trial court has engaged in
biased and prejudicial conduct.
{¶ 72} It is axiomatic that a " ' "fair trial in a fair tribunal is a basic requirement of
due process," ' " and "a biased decision maker is constitutionally unacceptable." Bailey v.
Beasley, 10th Dist. No. 09AP-682, 2010-Ohio-1146, ¶ 21, quoting Withrow v. Larkin, 421
U.S. 35, 46-47 (1975), quoting In re Murchison, 349 U.S. 133, 136 (1955). A bare
allegation of bias does not state a claim of a violation of due process. Id.{¶ 73} From what we can discern from his brief, appellant alleges the GAL had an
illicit referral relationship with appellee's counsel thus rendering her biased against him.
Appellant further alleges the trial court was biased against him because appellee's counsel
contributed to the trial judge's election campaign. Appellant does not explain how either
of these arguments creates a situation of constitutionally intolerable bias, nor does
appellant point to any authority to support his position.
{¶ 74} As to the GAL, appellee's counsel vehemently denies any allegation of an
improper relationship with GAL Fisher. Further, the trial court made clear to appellant
that it is the court, and not opposing counsel, who appoints the GAL, so appellant's
No. 13AP-840 19
complaints that appellee secured a GAL that would produce favorable results for appellee
were meritless. Additionally, as we explained in our discussion of appellant's seventh
assignment of error, GAL Fisher was eventually removed from the case and replaced with
a GAL that appellant never alleged showed any signs of bias against him.
{¶ 75} Moreover, an attorney's contribution to a judge's election campaign is not a
per se showing of bias. See Bansal v. Mt. Carmel Health Sys., 10th Dist. No. 10AP-1207,
2011-Ohio-3827, ¶ 51, citing In re Disqualification of Burnside, 113 Ohio St.3d 1211,
2006-Ohio-7223, ¶ 8. Appellant fails to demonstrate how opposing counsel's
contributions to the election campaign of the trial judge, without more, rises to the level of
unconstitutional bias.
{¶ 76} The remainder of appellant's due process argument reflects a general
dissatisfaction with the outcome of his case. However, mere disagreement with the result
is not proof of bias or prejudice against the dissatisfied party. Stanley v. Ohio State Univ.
Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 96. Appellant has not
demonstrated a violation of his right to due process, and we overrule his ninth assignment
of error.
XII. Disposition
{¶ 77} Based on the foregoing reasons, the trial court did not err in granting
appellee's motion to modify the shared parenting plan and awarding attorney fees to
appellee. Having overruled appellant's nine assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
CONNOR and O'GRADY, JJ., concur.