Tewalt v. Peacock
2011 Ohio 1726
Ohio Ct. App.2011Background
- Tewalt and Peacock are unmarried parents of child Rylee Tewalt; paternity action filed August 2009 seeking custody/visitation and support; November 2009 agreed entry established visitation schedule and Anna Police Department as the exchange point; final hearing on April 28, 2010; May 17, 2010 hearing re-run due to unrecorded portion; Magistrate’s May 2010 decision again fixed Anna as exchange point for Kerry’s residence in Anna; June 2010 motion to correct clerical error sought Sidney as exchange point; July 2010 trial court held a hearing reviewing a May hearing DVD and live testimony; August 2010 order adopted Magistrate’s decision listing Sidney as exchange point; Peacock appeals challenging procedural handling and factual findings regarding the exchange point.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tewalt’s motion to correct clerical error was an objection to the Magistrate’s Decision. | Tewalt sought to challenge the exchange point, not a clerical fix. | Motion was a clerical correction under Civ.R. 60(A). | The motion was an objection to the Magistrate’s Decision, not a clerical error. |
| Whether the trial court erred by reviewing a DVD in lieu of a transcript. | Transcripts were not filed; the DVD sufficed as alternative technology. | Transcripts were required; DVD review was improper without leave. | DVD review allowed as alternative technology; not reversible error. |
| Whether the trial court erred by considering closing arguments as evidence. | Closing arguments should not be treated as evidence influencing fact-finding. | Closing arguments may inform credibility; not dispositive evidence. | Court did not err in considering counsel’s closing argument; there was other competent evidence. |
| Whether there was an actual controversy about the exchange point needing change. | Record showed no genuine contest; Sidney was proposed as a midway point. | There was an implied agreement favoring Sidney as exchange point. | The trial court reasonably found exchange point was not contested and adopted Sidney. |
| Whether changing the exchange point to Sidney was in the child’s best interests. | Sidney offered a middle point and safety similar to Anna. | She feared safety; Sidney required monitoring; best interests favored Anna. | Best interests not shown to be improved; court’s decision to Sidney affirmed. |
Key Cases Cited
- Blust v. Lamar Advertising of Mobile, Inc., 183 Ohio App.3d 478 (Ohio App. 9th Dist. 2009) (clerical vs. substantive corrections under Civ.R. 60(A))
- Londrico v. Delores C. Knowlton, Inc., 88 Ohio App.3d 282 (Ohio App. 9th Dist. 1993) (distinguishing clerical mistakes from substantive errors)
- Pagonis v. Steele, 2010-Ohio-4459 (9th Dist.) (objections without transcripts; DVD as alternative)