Hanak v. Bush
2017 Ohio 4282
| Ohio Ct. App. | 2017Background
- Hanak and Bush divorced in 2008; they share two minor children (ages 16–17 at filing).
- Bush is incarcerated for murder and child endangerment and had parenting time suspended in 2013.
- Bush filed a motion (Sept. 9, 2016) to establish/modify parenting time; hearing held Nov. 17, 2016 (Bush appeared by phone).
- Magistrate denied the motion in a Nov. 21, 2016 decision; magistrate declined to interview the children in chambers citing potential psychological harm.
- Bush filed objections late (Dec. 7, 2016); trial court rejected them as untimely (Dec. 14, 2016) and adopted the magistrate’s decision; Bush appealed.
Issues
| Issue | Plaintiff's Argument (Hanak) | Defendant's Argument (Bush) | Held |
|---|---|---|---|
| Whether the court erred by not interviewing the children in chambers | Court properly exercised discretion to protect children from harm and relied on counseling history | Bush argued the court must interview children to determine their wishes about visitation | The statute permits but does not require interviews; court acted within its discretion and properly declined interview |
| Timeliness of objections to the magistrate's decision | Objections were untimely; thus appellant waived most appellate review | Bush contended his objections should be considered despite timing | Objections were untimely; appellate review limited to plain error only |
| Availability of transcript on appeal | Appellant bears duty to provide transcript; absence requires presumption of regularity | Bush requested transcript at state expense but did not secure one for the record | No transcript was provided; appellate court must presume proceedings regular and declines to reverse on that basis |
| Application of plain error review | Court must apply plain error due to waiver; plain error is an extraordinary, rare remedy | Bush sought reversal; argued error in not interviewing amounted to reversible error | Appellate court found no exceptional circumstances or plain error and affirmed judgment |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) (absent transcript, appellate court presumes regularity of proceedings)
- State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978) (standards for applying plain error doctrine)