Zoellner v. Zoellner

[Cite as Zoellner v. Zoellner, 2020-Ohio-406.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Melanie Zoellner Court of Appeals No. E-19-004
Appellant Trial Court No. 2017 DR 0002
v.
Robert Zoellner DECISION AND JUDGMENT
Appellee Decided: February 7, 2020
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Brent L. English, for appellant.
James W. Hart, for appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Melanie Zoellner, appeals the judgment of the Erie County Court
of Common Pleas, which adopted a magistrate’s entry, and which granted appellant a
divorce from appellee, Robert Zoellner, and divided the parties’ assets. For the reasons
that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On January 10, 2017, appellant initiated the present action by filing a
complaint for divorce from appellee. Appellee answered the complaint, and included a
counterclaim for divorce. Discovery was had, and the matter proceeded to a trial before
the magistrate on January 30 and April 30, 2018, for the division of property. At the end
of the trial, the magistrate requested proposed findings of fact and conclusions of law
from both parties to be filed within 30 days. Appellee submitted his proposed findings of
fact and conclusions of law on May 25, 2018. Appellant submitted her proposed findings
of fact and conclusions of law on June 29, 2018.
{¶ 3} On July 26, 2018, the magistrate adopted appellee’s findings of fact and
conclusions of law. On that date, the magistrate entered upon the journal a document
captioned “Findings of Fact and Conclusions of Law.” The document was nearly
identical to appellee’s proposed findings of fact and conclusions of law, except that the
magistrate removed appellee’s signature box, and signed his own name at the end of the
document.
{¶ 4} Also attached to the end of the July 26, 2018 entry was a single page titled
“NOTICE.” In addition to being in all caps, bolded, and underlined, it appears that the
word “notice” was in a slightly larger font size. Under the title, in ordinary typeface, was
the following:
Pursuant to Civil Rule 53, within 14 days of the filing of this
decision, a party may file written objections, stating the party’s objections
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with particularity. If a party makes a request for findings of fact and
conclusions of law under Civil Rule 53 and Civil Rule 52, the time for
filing objections begins to run when the magistrate files a decision
including findings of fact and conclusions of law.
If no written objections are filed within 14 days, Counsel for the
Defendant shall prepare a Judgment Entry pursuant to Civil Rule 53
adopting the foregoing Magistrate’s Decision for Judge Tone’s signature.
A party shall not assign as error on appeal the court’s adoption of
any finding of fact or conclusion of law in that decision unless the party
timely and specifically objects to that finding or conclusion as required by
Civ. R. 53.
{¶ 5} On August 9, 2018, appellant filed her “Objection to Magistrate’s Findings
of Fact and Conclusions of Law.” In her filing, appellant specifically contested
numerous findings of fact as being against the manifest weight of the evidence, and
multiple conclusions of law as being unsupported by the evidence and contrary to law.
Appellant also sought leave to “supplement these objects (sic), as they are being filed
prior to the preparation of the transcript in accordance with Civ.R. 53(D). [Appellant] is
requesting an additional 30 days after the transcript is prepared in which to supplement.”
{¶ 6} On August 23, 2018, appellant filed the court reporter’s statement that the
transcript consisted of approximately 450 pages and would take between 60 and 75 days
to prepare.
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{¶ 7} Nothing else was placed into the record until November 2, 2018, when
appellee filed a “Motion and Affidavit to Show Cause,” in which he alleged that
appellant placed a “for sale” sign in the window of their marital home in violation of a
court injunction.
{¶ 8} On November 5, 2018, appellant filed her “Notice of Dismissal of Appeal,”
in which she “dismiss[ed] her appeal of the magistrate’s decision.”
{¶ 9} On December 26, 2018, the trial court entered its judgment adopting the
magistrate’s July 26, 2018 entry, which it characterized as the “magistrate’s decision.”
The court noted in its judgment entry that appellant timely filed objections on August 9,
2018, that appellee filed a motion and affidavit to show cause, and that the parties then
reached an agreement that would become an order of the court. In particular, the court
ordered that appellant must take out a mortgage on the marital residence to pay
approximately $43,000 to appellee to equalize the parties’ property division, and appellee
must withdraw his motion and affidavit to show cause, and the costs for the motion
would be paid from the filing fee deposited by appellee. The judgment entry noted that
appellant then dismissed her objections on November 5, 2018. The December 26, 2018
judgment entry was approved by both parties, but with appellant and her attorney
approving “as to form only.”
II. Assignments of Error
{¶ 10} Appellant has timely appealed the December 26, 2018 judgment of the Erie
County Court of Common Pleas, and now asserts one assignment of error for our review:
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1. The judgment of the trial court adopting “findings of fact and
conclusions of law” as a “magistrate’s decision” is erroneous and must be
reversed because the magistrate failed to comply with Civ.R.
53(D)(3)(a)(iii) by (1) failing to designate the decision as a “magistrate’s
decision” in the caption; and (2) by failing to conspicuously inform the
parties that failure to file timely and specific objections to the magistrate’s
findings of fact and conclusions of law, no matter how they were
designated in the decision, constituted a waiver of the right to appeal from
the adopting of those findings of fact and conclusions of law.
III. Analysis
{¶ 11} The crux of appellant’s argument is that the magistrate’s July 26, 2018
entry was procedurally deficient in two ways, and thus did not constitute a “magistrate’s
decision” under Civ.R. 53(D)(3)(a)(iii). Civ.R. 53(D)(3)(a)(iii) provides,
A magistrate’s decision shall be in writing, identified as a magistrate’s
decision in the caption, signed by the magistrate, filed with the clerk, and
served by the clerk on all parties or their attorneys no later than three days
after the decision is filed. A magistrate’s decision shall indicate
conspicuously that a party shall not assign as error on appeal the court’s
adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Civ.
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R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that
factual finding or legal conclusion as required by Civ. R. 53(D)(3)(b).
In particular, appellant argues that the magistrate’s July 26, 2018 entry was not identified
as a “magistrate’s decision” in the caption, and that the entry did not “conspicuously”
provide the notice that a party must object to the magistrate’s decision in order to
preserve the right to challenge the adoption of a factual finding or legal conclusion on
appeal. Notably, appellant does not argue that the content of the notice provided in the
July 26, 2018 entry was deficient, only that it was not “conspicuous.”
{¶ 12} “A trial court’s failure to comply with Civ.R. 53 constitutes grounds for
reversal only if the appellant shows the alleged error has merit and the error worked to
the prejudice of the appellant.” In re Estate of Hughes, 94 Ohio App. 3d 551, 554, 641
N.E.2d 248 (9th Dist.1994). Here, even assuming the arguable deficiencies to be errors,
the record reveals that the alleged errors did not work to the prejudice of appellant.
{¶ 13} As cited by appellant, “Civ.R. 53(D)(3)(a)(iii) uses the mandatory ‘shall’ to
impose an obligation on magistrates to identify their decisions and to notify the parties of
the necessity to file objections in order to avoid forfeiting the parties’ arguments on
appeal.” M.H. v. J.H., 9th Dist. Medina No. 16CA0055-M, 2017-Ohio-8679, ¶ 9. “The
clear import of [Civ.R. 53(D)] is to provide litigants with a meaningful opportunity to
register objections to the [magistrate’s decision] and the failure to provide such an
opportunity to object is prejudicial error.” Id., quoting Ulrich v. Mercedes-Benz USA,
LLC, 9th Dist. Summit No. 23550, 2007-Ohio-5034, ¶ 13. In this case, appellant had a
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meaningful opportunity to register objections to the magistrate’s July 26, 2018 entry
because she did, in fact, file objections to the entry.
{¶ 14} However, appellant now claims that her November 5, 2018 decision to
withdraw her objections was impacted by confusion regarding what the July 26, 2018
entry was, and what she should or could do in response to it. Appellant argues that this
confusion is evidenced by her usage of differing nomenclature in that she initially
objected to the “Magistrate’s Findings of Fact and Conclusions of Law,” but later
dismissed “her appeal of the magistrate’s decision.” We find no merit to this claim. To
the contrary, the record reveals that the July 26, 2018 entry—although not captioned as
such—was clearly the magistrate’s decision following the trial on the division of
property. Appellant evidently understood the July 26, 2018 entry as such in that she
timely filed objections to the entry. Most tellingly, in her “Objection to Magistrate’s
Findings of Fact and Conclusions of Law,” appellant cited Civ.R. 53(D) in asking for the
ability to supplement her objections upon preparation of the transcript. Appellant’s claim
that she did not understand what the July 26, 2018 entry was is belied by the fact that in
her objections to the entry she cited the very rule governing magistrate’s decisions and
the objections thereto.
{¶ 15} Therefore, we find it unnecessary to determine whether the failure to
caption an entry as a “magistrate’s decision” is reversible error, or to determine whether
notice of a party’s rights and obligations under Civ.R. 53(D) is “conspicuous” when it is
placed on a separate page under a heading that is in all-caps, bolded, underlined, and in a
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larger font, because in this case, appellant has not demonstrated any prejudice in that she
timely filed objections to the magistrate’s July 26, 2018 entry.
{¶ 16} Accordingly, appellant’s assignment of error is not well-taken.
IV. Conclusion
{¶ 17} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Erie County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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