Elson v. Plokhooy, 2011 Ohio 3009

Elson v. Plokhooy, Shelby County, Ohio Court of Appeals, Third District, Case No. 17-10-24; judgment below reallocating parental rights and responsibilities.
Original divorce decree (2002) awarded Melissa residential parent and Frank non-residential with visitation; Melissa later challenged and we affirmed a 2004 modification increasing Frank’s time.
In 2009, Frank sought residential/shared parenting and a GAL with in camera interview; Melissa sought dismissal or contempt based on mediation issues.
A GAL was appointed (Sept. 28, 2009) and recommended shared parenting with Frank primary residence; Melissa sought more visitation and distance-time changes.
Magistrate issued a decision (April 29, 2010) implementing Frank’s Shared Parenting Plan, with some visitation modifications for Melissa; Melissa objected (May–Sept. 2010).
Court entered judgment on Sept. 14, 2010; Melissa filed objections; appeal followed, arguing transcript not read, deposition not considered, failure to conduct in camera interview, and GAL compliance issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by not reading the transcript before judgment	Plokhooy asserts due process was violated due to unread transcript.	Elson contends the court properly exercised discretion; delay was not reversible error.	No reversible error; transcript not properly filed within Civ.R. 53 timelines.
Whether the court erred by not considering Kuhn deposition	Kuhn's deposition, admitted by stipulation, should have been considered.	Arguments reframe the first issue; failure to read transcript renders deposition irrelevant here.	Disregarded; not a separate reversible error.
Whether the court erred by not conducting a second in camera interview after independent counsel appeared	A second in camera interview was required to resolve conflicts between GAL and child.	Discretionary under Rule 53(D)(4)(b); no automatic second in camera interview required.	No reversible error identified; court did not abuse discretion.
Whether the GAL was required to comply with Rules of Superintendence 48(D)(8) and 48(D)(1)	GAL failed to report conflicts with child’s wishes and to update reports; court should enforce rules.	Rules are internal housekeeping; lack of authority to create substantive rights; expertise not misapplied.	No reversible error; plain error found under RC 3109.04(D)(1)(a)(iii) requiring proper findings and process; remanded for compliance.

DeFrank-Jenne v. Pruitt, 11th Dist. No. 2008-L-156, 2009-Ohio-1438 (11th Dist. 2009) (abuse of discretion standards in magistrate decisions)
Clark v. Clark, 2007-Ohio-5771 (3d Dist. 2007) (courts may request modified plans when objections exist)
Schattschneider v. Schattschneider, 2007-Ohio-2273 (3d Dist. 2007) (modification of plans to meet objections)
DaSilva v. DaSilva, 2005-Ohio-5475 (12th Dist. 2005) (planning and best-interest considerations in shared parenting)
McClain v. McClain, 87 Ohio App.3d 856 (Ohio App.3d 1993) (limits on adopting revised plans versus modifying plans)
Dean v. Dean, 1999-Ohio-211828 (12th Dist. 1999) (transcript filing timelines and due process considerations)
Ludlow v. Ludlow, 2006-Ohio-6864 (11th Dist. 2006) (appellate review of evidentiary considerations)
Allen v. Allen, 2010-Ohio-475 (11th Dist. 2010) (Rules of superintendence not creating substantive rights)
State v. Gettys, 49 Ohio App.2d 241 (1976) (Rules of superintendence do not override substantive rights)
In re K.G., 2010-Ohio-4399 (9th Dist. 2010) (status of in camera interviews and child representation)
Sultaana v. Giant Eagle, 2008-Ohio-3658 (8th Dist. 2008) (interpretation of superintendence rules)
State v. Porter, 49 Ohio App.2d 227 (1976) (interpretation of procedural rules)
State v. Smith, 47 Ohio App.2d 317 (1976) (procedural standards in family matters)
Allen v. Allen, 2010-Ohio-475 (11th Dist. 2010) (superintendence rules non-substantive)