STACI ANN BECHER v. GARY BECHER
No. 108472
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
February 27, 2020
[Cite as Becher v. Becher, 2020-Ohio-669.]
MARY J. BOYLE, P.J.
Case No. DR-17-368817
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 27, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-17-368817
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A. Cruz, for appellant.
Rosenthal Thurman Lane, L.L.C., and James L. Lane, for appellee.
MARY J. BOYLE, P.J.:
{¶ 1} Plaintiff-appellant, Staci Ann Becher (“wife“), appeals from a judgment ordering that she and appellee, Gary Becher (“husband“), pay their own attorney fees and litigation expenses and denying her request for reimbursement of
- The trial court erred as a matter of law and abused its discretion failing to follow the procedural mandates of
Civ.R. 53 concerning magistrate[‘]s decisions and magistrate‘s orders. - The trial court erred as a matter of law and abused its discretion by denying the appellant‘s motion for reimbursement of expenses.
- The trial court erred as a matter of law and abused its discretion by denying appellant‘s motion for attorney fees and litigation expenses.
{¶ 2} Finding merit to wife‘s first assignment of error, we reverse and remand.
I. Procedural History and Factual Background
{¶ 3} The parties were married in November 2001 and had two children born during the marriage, one in 2005 and the other in 2006. Husband originally filed for divorce in November 2015, but the trial court dismissed the action in August 2017, for failure to prosecute. Wife filed the instant case in September 2017. At that time, wife also moved for temporary support. The trial court referred the matter to a magistrate. The magistrate held a hearing on wife‘s motion and subsequently ordered husband to pay $1,834 per month in temporary child support as well as 66.67 percent of the children‘s out-of-pocket medical expenses and 50 percent of their extracurricular activities.
{¶ 4} In August 2018, the magistrate modified the temporary support order, ordering husband pay $1,630 per month in temporary child support, 62.7
{¶ 5} According to the appearance docket, the trial court entered an order on January 10, 2019, stating that a “contested trial” was set for January 10, 2019 before the magistrate on all remaining issues.1 The parties, however, had come to an agreement on almost all matters and had entered into a shared parenting plan on January 8, 2019.
{¶ 6} The parties appeared before the magistrate on January 10, 2019. The magistrate stated at the outset of the hearing that the case had been set for trial for January 7, 2019, but that the parties had been successful in settling most matters in their divorce. The magistrate indicated that the parties had “a shared parenting plan” and that he had an “agreed judgment entry half sheet” that he had already signed as well as the parties and their counsel. The magistrate stated that “the judge is going to sign [it] this morning” and then they would file it. The magistrate indicated that he would permit the parties to place their agreement on the record.
{¶ 7} The parties informed the magistrate that they had reached an agreement on all matters except payment of attorney fees and litigation expenses
{¶ 8} Wife‘s attorney then placed the remaining agreement on the record. The parties agreed that husband would pay wife $500 per month in spousal support for five years, and that the court would retain jurisdiction to modify the spousal support. The parties also agreed that husband would pay $1,500 per month in child support plus a 2 percent processing charge, $247.61 in cash for medical support, and 62.7 percent of the children‘s out-of-pocket medical expenses. The parties further agreed that husband would pay for two extracurricular activities per child per year. They also agreed on the division of all assets and debt.
{¶ 9} Wife‘s attorney then informed the magistrate:
Now the things that have not been resolved which we‘ll leave to the court‘s determination is the issue of attorney fees. My understanding by the end of the month both parties will submit their affidavits or briefs associated with their claims for attorney fees, as well as the court‘s determination of the expenses for the children‘s expenses that the parties have not been able to work it out.
* * *
The judgment entry of divorce, your honor, hopefully we‘ll have it circulated and to you by the end of this month. And so what we would do, your honor, is so that the order would be done in such a fashion, we would present the order to you and carve out at the tail end of the entry those two remaining issues but for the court‘s determination, so that the judgment entry of divorce the parties could be in fact, divorced and we could wait on your determination on those remaining issues.
We‘re not — for the record, I‘m not bifurcating issues, we‘re just doing it in such a fashion it‘s going to be heard and submitted to you on those two issues, and the parties therefore are going to be granted a divorce pursuant to the judgment entry of divorce.
{¶ 10} With respect to one remaining credit card balance that the parties were not sure they had included in their agreement, the magistrate stated, “What I‘ll suggest, I know we have a time issue. That‘s $1,500 here or there. If for some reason you can‘t hash that out among the two of you, and it‘s different than what [wife‘s attorney] said in the record today, include that in your briefs and I‘ll make a determination on that.”
{¶ 11} Husband‘s counsel then placed a few comments about the parties’ agreement on the record. The magistrate addressed the parties to ascertain whether they agreed with what their attorneys placed on the record. The magistrate then stated, “So when we receive those documents I‘ll sign them. More importantly, I‘ll have my judge sign them and get them filed.”
{¶ 12} The parties again told the magistrate that they would have the documents (the final divorce decree and briefs on the remaining contested issues) “to the court” by the end of the month. The magistrate indicated that he would have his scheduler enter January 31 just as a “delivery of documents date” and told the parties that if they needed more time they should “contact the court.”
{¶ 13} According to the appearance docket, “delivery of documents” was set for February 1 and February 8, 2019, before the magistrate. On February 8, 2019, husband submitted his brief in support of his motion for attorney fees and litigation
{¶ 14} On March 22, 2019, a judgment entry was issued on the remaining contested matters. The judgment entry states that the parties settled all matters except payment of their respective attorney fees and litigation expenses and mother‘s request for reimbursement of expenses related to the children. The judgment entry then states the following:
The court hereby finds that both plaintiff and defendant should be responsible for their respective attorney fees and litigation costs; and
The court hereby finds each party shall be solely responsible for any out-of-pocket expenses he/she has incurred, and neither party is required to further reimburse the opposing party.
{¶ 15} The judgment entry is signed by both the magistrate and the judge. It is from this judgment that wife now appeals.
II. Civ.R. 53
{¶ 16} In her first assignment of error, wife argues that because the trial court referred the parties’ divorce case to a magistrate and the magistrate presided over all of the divorce proceedings, the March 22, 2019 “judgment entry” should have been a “magistrate‘s decision” to which she could have objected. She asserts that ”
{¶ 18} A court may refer a case, a single matter, or multiple matters to a magistrate.
{¶ 19} A court, however, retains the authority to limit a magistrate‘s powers.
A court of record may limit a reference by specifying or limiting the magistrate‘s powers, including but not limited to, directing the magistrate to determine only particular issues, directing the magistrate to perform particular responsibilities, directing the magistrate to receive and report evidence only, fixing the time and place for beginning and closing any hearings, or fixing the time for filing any magistrate‘s decision on the matter or matters referred.
{¶ 20} Under
{¶ 21} If a party wishes to request that the magistrate issue findings of fact and conclusions of law, the party must make that request “before the entry of a magistrate‘s decision or within seven days after the filing of a magistrate‘s decision. If a request for findings of fact and conclusions of law is timely made, the magistrate may require any or all of the parties to submit proposed findings of fact and conclusions of law.”
{¶ 22} If a party wishes to object to the magistrate‘s decision, it must do so within 14 days.
{¶ 23} “An essential component of a trial court‘s judicial function is to review and to ratify a magistrate‘s decision before it becomes effective.” Yantek, 1st Dist. Hamilton No. C-060601, 2007-Ohio-5126, ¶ 11. Indeed, “[a] magistrate‘s decision
{¶ 24} Because a magistrate is an arm of the court and not a separate judicial entity with independent judicial authority, “a trial court may not ‘merely rubber stamp’ a magistrate‘s decision.” State ex rel Dewine v. Ashworth, 4th Dist. Lawrence No. 11CA16, 2012-Ohio-5632, ¶ 38; McCarty v. Hayner, 4th Dist. Jackson No. 08CA8, 2009-Ohio-4540, ¶ 17, citing Knauer v. Keener, 143 Ohio App.3d 789, 793, 758 N.E.2d 1234 (2d Dist.2001). Thus, the trial court should not adopt a magistrate‘s “‘findings of fact unless the trial court fully agrees with them — that is, the trial court, in weighing the evidence itself and fully substituting its judgment for that of the [magistrate], independently reaches the same conclusion.“’ McCarty at ¶ 17, quoting DeSantis v. Soller, 70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990).
{¶ 25} The Ohio Supreme Court explained the relationship between a magistrate and a trial court in Hartt v. Monobe, 67 Ohio St.3d 3, 615 N.E.2d 617 (1993):
Civ.R. 53 places upon the court the ultimate authority and responsibility over the referee‘s findings and rulings. The court must undertake an independent review of the referee‘s report to determine any errors.Civ.R. 53(E)(5) ; Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 2 OBR 653, 443 N.E.2d 161, paragraph two of thesyllabus. Civ.R. 53(E)(5) allows a party to object to a referee‘s report, but the filing of a particular objection is not a prerequisite to a trial or appellate court‘s finding of error in the report. Id., paragraph one of the syllabus. The findings of fact, conclusions of law, and other rulings of a referee before and during trial are all subject to the independent review of the trial judge. Thus, a referee‘s oversight of an issue or issues, even an entire trial, is not a substitute for the judicial functions but only an aid to them. A trial judge who fails to undertake a thorough independent review of the referee‘s report violates the letter and spirit ofCiv.R. 53 , and we caution against the practice of adopting referee‘s reports as a matter of course, especially where a referee has presided over an entire trial.
{¶ 26} The Supreme Court‘s explanation appears to come, at least in part, directly from the 1970 staff notes regarding the enactment of
In addition to describing the powers of the referee (Rule 53(C)) and the proceedings before the referee (Rule 53(D)), the rule requires that the referee file a written report with the court (Rule 53(E)(1)). The parties may object to the report (Rule 53(E)(2)), and the court may adopt, reject, modify, or recommit the report or receive further evidence (Rule 53(E)(2)). Finally, the referee‘s report is not effective and binding until it is approved by the court and entered as a matter of record. (Rule 53(E)(5)). Rule 53 contemplates that a referee shall aid the court in the expedition of the court‘s business and not be a substitute for the functions of the court.
{¶ 27} In this case, the magistrate presided over the final divorce hearing where the parties explained that they had reached an agreement on nearly all matters. With respect to the two remaining issues on which the parties could not reach an agreement, they informed the magistrate that they would submit briefs to the magistrate so that the magistrate could decide the matter on the briefs. Wife‘s attorney stated, “[I]t‘s going to be heard and submitted to you on those two issues.”
{¶ 29} The fact that this judgment was signed by both the magistrate and the judge violates the mandates of
{¶ 30} Second, the judgment entry received by the parties deprived them of an opportunity to object. The purpose of requiring a magistrate‘s decision is to permit the parties an opportunity to file objections to the magistrate‘s decision and to provide the trial court with sufficient information to conduct its own independent analysis. Richmond v. Evans, 8th Dist. Cuyahoga No. 101269, 2015-Ohio-870, ¶ 51, citing Performance Constr., Inc. v. Carter Lumber Co., 3d Dist. Hancock No. 5-04-28, 2005-Ohio-151.
{¶ 31} Third, the fact that the trial court and the magistrate both signed the judgment entry is indicative of rubber stamping. A trial court cannot simply defer to the magistrate. It must conduct a de novo review of any magistrate‘s decision. Here, the matters were submitted to the magistrate for the magistrate‘s
{¶ 32} Fourth,
{¶ 33} Finally, magistrates “serve only in an advisory capacity to the court and have no authority to render final judgments affecting the right of parties.” Nolte v. Nolte, 60 Ohio App.2d 227, 231, 396 N.E.2d 807 (8th Dist.1978). A magistrate‘s power is specifically intended only “to assist courts of record.”
{¶ 34} By approving the procedural scheme embodied in
{¶ 35} Thus, we agree with wife that the judgment entry in this case that is signed by both the trial court and the magistrate violates the procedures set forth in
{¶ 36} While we recognize the importance of judicial economy and the discretion afforded trial courts to effectively manage their dockets, that discretion must be exercised within constitutional and statutory constraints. For all these reasons, we cannot condone the trial court‘s action in this case. It is contrary to the Ohio Constitution and the Ohio Rules of Civil Procedure.
{¶ 37} Wife‘s first assignment of error is sustained.
III. Reimbursement of Expenses
{¶ 38} Although wife‘s second and third assignments of error are technically moot in light of our disposition of her first assignment of error, we will briefly address one issue raised by wife because the issue is likely to come up again upon remand. Wife asserts that the trial court erred when it ordered that “each party shall be solely responsible for any out-of-pocket expenses he/she has incurred, and neither party is required to further reimburse the opposing party.”
{¶ 39} The parties could not agree on two issues: (1) attorney fees and litigation expenses and (2) reimbursement of out-of-pocket medical costs for the children and extracurricular activities that occurred while the divorce was pending.
{¶ 40} According to wife‘s request for reimbursement of out-of-pocket medical costs for the children and for extracurricular activities that occurred while the divorce was pending, husband was supposed to pay 62.7 percent of the children‘s out-of-pocket medical expenses and 50 percent of their extracurricular activities under the temporary orders issued by the magistrate. Wife asserted that husband did not do so and thus, she had to pay the entire amount of these costs. Wife attached substantial evidence to her brief, including her affidavit, proof of the expenses incurred, and proof of payment of these expenses. Wife would like to be reimbursed for these costs.
{¶ 41} After reviewing the trial court‘s judgment, it does appear that the trial court failed to consider wife‘s request for reimbursement of the children‘s expenses. In its judgment entry, the trial court first stated that each party be responsible for his and her attorney fees and litigation expenses. The trial court then stated that “each party shall be solely responsible for any out-of-pocket expenses he/she has incurred.” But expenses relating to the children, a portion of which husband was required to pay under the temporary support order, are not expenses that wife
{¶ 42} Husband points out that many of the items for which wife requested to be reimbursed, such as clothes and teachers’ gifts, were not medical costs or extracurricular activities. While we agree that wife did include some of these expenses, she also included many items that do fall under the temporary support order.
{¶ 43} Husband further argues that wife did not properly move for these expenses because she did not file a motion to show cause. Although filing a motion to show cause is one way to obtain these expenses, it is not the only way. A party can wait until the final hearing in a divorce to request these expenses, which is what occurred here.
{¶ 44} Accordingly, upon remand, we instruct the trial court to consider wife‘s request for reimbursement of expenses relating to the children that accrued during the pendency of the divorce and that husband was supposed to pay pursuant to the temporary order.
{¶ 45} Judgment reversed and remanded based upon the record before us. Upon remand, we instruct the trial court to comply with
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGEMENT ONLY