McWhirter v. McWhirter

[Cite as McWhirter v. McWhirter, 2023-Ohio-1066.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
CHRISTIAN A. MCWHIRTER,
Plaintiff-Appellee,
v.
DANIELLE D. MCWHIRTER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 JE 0007
Civil Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 20 DR 282
BEFORE:
Mark A. Hanni, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Reversed and Remanded.
Atty. Kristopher M. Haute, 2021 Sunset Boulevard, Steubenville, Ohio 43952, for Plaintiff-
Appellee and
Atty. Marian D. Davidson, 119 Harrison Street, Lisbon, Ohio 44432, for Defendant-
Appellant.
Dated: March 30, 2023
–2–
HANNI, J.
{¶1} Defendant-Appellant, Danielle D. McWhirter, appeals from a Jefferson
County Common Pleas Court judgment adopting a separation agreement between her
and Plaintiff-Appellee, Christian McWhirter.
{¶2} The parties were married on June 17, 2007. They have three minor
children.
{¶3} Appellee filed a complaint for divorce on October 20, 2020. The court
issued temporary orders. The matter was set for a final evidentiary hearing before a
magistrate on March 9, 2022.
{¶4} On the day of the hearing, Appellant appeared with counsel, as did
Appellee. The magistrate reprimanded Appellant for bringing her infant son to court. The
magistrate then listened as counsel put the terms of a separation agreement into the
record. Appellant voiced some concern over the appraisal of the marital home and
indicated she may have known someone who was willing to purchase the house for her.
She also explained that she had been under a lot of stress caused by the father of her
infant son. The parties both signed the separation agreement.
{¶5} At the conclusion of the hearing, the magistrate issued a decision adopting
the separation agreement. At the end of the decision, the magistrate’s bailiff typed, “The
Parties agree to waive the 14 day objection period.” The trial court issued the divorce
decree, adopting the separation agreement, the same day.
{¶6} Appellant filed a timely notice of appeal on April 11, 2022. She now raises
a single assignment of error for our review.
{¶7} Appellant’s sole assignment of error states:
THE COURT ERRED AND ABUSED ITS DISCRETION BY ADOPTING A
SEPARATION AGREEMENT AND ENTERING A MAGISTRATE’S
DECISION WHILE DEFENDANT/APPELLANT WAS UNDER EXTREME
DURESS AS A RESULT OF BOTH THE COURT’S AND APPELLANT’S
TRIAL COUNSEL’S CONDUCT.
Case No. 22 JE 0007
–3–
{¶8} Appellant argues both the magistrate and her own counsel intimidated her
and pressured her into signing the separation agreement under duress. She takes issue
with the magistrate chastising her for bringing her infant son to court. She claims her
counsel put words into her mouth and confused and distracted her. And she asserts the
magistrate erred when he added language to his decision stating that the parties waived
their 14-day objection period.
{¶9} This court reviews a trial court's decision to adopt, reject, or modify a
magistrate's decision for an abuse of discretion. Bank of America, N.A. v. Miller, 7th Dist.
Mahoning No. 13 MA 119, 2015-Ohio-2325, ¶ 25, citing Long v. Noah's Lost Ark, Inc.,
158 Ohio App.3d 206, 2004-Ohio-4155, 814 N.E.2d 555, ¶ 17 (7th Dist.). An abuse of
discretion connotes an attitude that is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶10} Pursuant to Civ.R. 53(E)(3), a party may file written objections to a
magistrate's decision within 14 days of the filing of that decision. The trial court may adopt
a magistrate's decision, and enter judgment, without waiting for timely objections by the
parties, but the filing of timely written objections operates as an automatic stay of
execution of that judgment until the court disposes of the objections and vacates,
modifies, or agrees with the judgment it previously entered. Civ.R. 53(E)(4)(c).
{¶11} Even if both parties submit an agreed magistrate’s decision, which is then
adopted by the magistrate, the parties still have 14 days within which to file objections to
that decision. Kontir v. Kontir, 2d Dist. Champaign No. 2003-CA-12, 2003-Ohio-4845, ¶
12. The parties may still raise certain objections, such as the entry is contrary to law or
the entry does not reflect the actual agreement of the parties due to a clerical error. Id.A timely objection would give the trial court an opportunity to cure any error. Id.{¶12} We can glean from the record that Appellant objected at the hearing to the
language that she was waiving the 14-day objection period. This language was not
originally included in the magistrate’s decision but was typed in later by the bailiff at the
magistrate’s instruction after both counsel agreed to it. (Tr. 44).
{¶13} At the end of the hearing, the magistrate instructed the bailiff to add a line
to the decision stating that the parties waived the 14-day right to object. (Tr. 44). The
following colloquy then took place:
Case No. 22 JE 0007
–4–
THE COURT: We’re just going to add another paragraph specifying
the parties have waived the fourteen-day right to object and so forth.
(Baby crying.)
MS. McWHIRTER: (Inaudible.)
THE COURT: That way the Judge can sign the file entry immediately.
MR. LACICH: It’s just a - - it’s a procedural thing as far as waiving
objections.
MS. McWHIRTER: Well, it takes away my right to (inaudible)? Is that what
that is?
MR. LACICH: Yeah, that is the Court - - the Court’s interpretation of
that is (inaudible).
(Baby crying.)
(Inaudible cross-talk.)
MR. LACICH: You’ve agreed to this now. Changing your mind
(inaudible).
(Baby crying.)
MR. LACICH: That doesn’t mean the Judge would agree that you
could change your mind.
MS. McWHIRTER: Yeah.
(Cross-talk.)
MS. McWHIRTER: (Inaudible) off the stand, you said.
(Tr. 44-45).
{¶14} As the above colloquy indicates, Appellant had an objection as to the waiver
of the 14-day objection period. She then had a discussion with the magistrate and her
attorney. Appellant was concerned with giving up her right to object. Her attorney then
told her she had already agreed to the waiver. Appellant then acquiesced to her
attorney’s admonishment.
{¶15} Given the facts at the hearing, the magistrate acted unreasonably by
inserting the waiver of objections language into the parties’ separation agreement.
Accordingly, Appellant’s assignment of error has merit in this regard.
Case No. 22 JE 0007
–5–
{¶16} Based on this determination, the remaining argument in Appellant’s
assignment of error is moot.
{¶17} For the reasons stated above, the trial court’s judgment is reversed and the
matter is remanded on the limited basis to allow Appellant 14 days to raise objections to
the magistrate’s decision. The objections, however, are limited to those that can be raised
when a magistrate’s decision incorporates a separation agreement between the parties.
Robb, J., concurs.
D’Apolito, P.J., concurs.
Case No. 22 JE 0007
[Cite as McWhirter v. McWhirter, 2023-Ohio-1066.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
sustained and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Jefferson County, Ohio, is reversed. We hereby remand this matter
on the limited basis to allow Appellant 14 days to raise objections to the magistrate’s
decision. The objections are limited to those that can be raised when a magistrate’s
decision incorporates a separation agreement between the parties. Costs to be taxed
against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.