DIANA HULL NKA ORMAN v. RICHARD HULL
Case No. 2011CA00155
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 27, 2012
2012-Ohio-970
Hоn. John W. Wise, P.J.; Hon. Julie A. Edwards, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Domestic Relations Case No. 2002DR00593; JUDGMENT: AFFIRMED
For Appellant:
ARNOLD F. GLANTZ
4883 Dressler Rd. NW
Canton, OH 44718
For Appellee:
DAVID S. AKE
101 Central Plaza South
Suite 600
Canton, OH 44702
{¶1} Plaintiff-Appellant Diana Orman appeals the June 16, 2011 decision of thе Stark County Court of Common Pleas, Domestic Relations Division. Defendant-Appellee is Richard Hull.
STATEMENT OF THE FACTS AND CASE
{¶2} The parties were divorced through a Nunc Pro Tunc Judgment Entry of Divorce on January 15, 2003. There was one child born аs issue of the marriage, I.H., born September 26, 1998. The divorce decree named Appellant as the residential parent.
{¶3} On April 1, 2010, Appellee filed a Motion for Change of Custody or Granting of Shared Parеnting. A guardian ad litem was appointed for I.H. on April 27, 2010.
{¶4} A hearing was set on the motion on June 15, 2011. At the hearing before the magistrate, the parties did not present any evidence or exhibits other than the GAL written reрort and recommendations filed on June 15, 2011 and Stipulations of Fact, which were read into the record. The stipulations, as relevant to this appeal, were as follows: (1) Appellee is not the biоlogical father of I.H.; (2) Appellee did not appear at the final divorce hearing; (3) Appellant testified at the final divorce hearing one child was born as issue of the marriage; (4) the GAL did not allege Appellant was unsuitable or an unfit parent to I.H.; (5) no custody determination had been made regarding I.H. since the final divorce decree; and (6) the parties stipulate to the GAL report as filed.
{¶5} Thе GAL report recommended it was in I.H.s best interest that Appellee be named the residential parent and legal custodian.
{¶6} On June 15, 2011, the magistrate issued an order stating she would take the issue of custody under advisement.
{¶7} The magistrates decision, filed on June 16, 2011, recommended it was in the childs best interest that custody be granted to Appellee.
{¶8} The magistrates decision contained the
{¶9} Beneath the
{¶10} “The Court, having made an independent analysis of the issues and the applicable law, hereby approves and adopts the Magistrates Decision and orders it to be entered as a matter of record.”
{¶11} The record shows that Appellant did not file written objections tо the magistrates decision but filed a direct appeal of the June 16, 2011 decision.
{¶12} Appellant raises two Assignments of Error:
{¶13} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY THE UNSUITABILITY TEST BEFORE CHANGING CUSTODY OF [I.H.] FROM HIS BIOLOGICAL MOTHER TO A NONPARENT.
{¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THERE WAS A CHANGE OF CIRCUMSTANCES WARRANTING A CHANGE OF CUSTODY.”
{¶15} Before we reach the merits of Appellants appeal, we first address Appellees argument that Appеllant did not file objections to the magistrates decision before filing her appeal of the magistrates decision, thereby waiving her arguments on appeal.
{¶16} Under
{¶17} The immediate signature by the trial court judge approving and adopting the magistrates decision does not bar the parties from filing written objections to the magistrates decision. See Wood Manor Furniture, Inc. v. Miken, Inc., 5th Dist. No. 2000CA00024, 2000 WL 1158752 (Aug. 14, 2000). “If the court enters a judgment during the fourteen days permitted by
{¶18} Under
{¶19} In this case, the June 16, 2011 magistrates decision contains findings of facts and conclusions of law upon which Appellant bases her currеnt appeal. The trial courts immediate approval and adoption of the magistrates decision does not obviate the need for written objections to the magistrates decision so thаt Appellant can assign as error on appeal the trial courts adoption of that finding or conclusion, absent plain error. In re J.K., 4th Dist. No. 11CA3269, 2012-Ohio-214.
{¶20} Accordingly, we review Appellants Assignments of Error under the plain error doctrine. “[I]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy оf the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997).
I.
{¶21} Appellant argues in her first Assignment of Error the trial court applied the incorrect legal standard in determining the custody of I.H. The trial court utilized
{¶22} “The court shall not modify a prior decree allocating parental rights and resрonsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a changе has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary tо serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
{¶23} “***
{¶24} “(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment tо the child.”
{¶25} Appellant states the trial court should have made an unsuitability determination, rather than considering the best interests of the child, because the custody dispute is between a natural parent аnd a nonparent. The parties stipulated Appellee is not the biological father of I.H. Appellant cites to In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977), for the holding that in a custody dispute between a parent and nonparent, the juvenile court must make a determination of parental unsuitability before awarding custody to a nonparent in a legal custody proceeding. Id. at syllabus.
{¶26} Upon review of the proceedings in this case, wе find the trial court utilized the correct standard for determining custody. Child custody disputes under Ohio law fall within the coverage of one of two statutes, depending on the
{¶27} Irrespective of Appellants arguments as to the parental status of Appellee, the present custody dispute arises from a divorce proceeding under the jurisdiction of the domestic relations court through
{¶28} Appellants first Assignment of Error is overruled.
{¶29} Appellant argues in her second Assignment of Error the trial court abused its discretion in finding there was a change of circumstances warranting the change of custody. We disagree.
{¶30} In the case of In the Matter of McLaughlin Children, 5th Dist. No. 2002-CA-00316, 2003-Ohio-761, this Court held a trial court has broad discretion in matters concerning the allocation of parental rights and responsibilities and we will not disturb its decision on appeal absent an abuse of discretion. Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 655 (1994). Abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶31} The trial court found there had been a change of circumstances warranting a change in custody. The magistrate’s decision found “the child’s relationship with his parents has changed, his relationship with Plaintiff and stepfather is strained, and he does not feel included in Plaintiff’s family. Plaintiff has remarried and has two children from thаt marriage.” (Magistrate’s Decision, June 16, 2011.)
{¶32} Because Appellant failed to file written objections to the magistrate’s findings of fact, Appellant cannot assign this as an error for appeal, othеr than under plain error review.
{¶33} Considering the standard set under Goldfuss, we find no substantial error or exceptional example of abuse of discretion in the trial court’s determination as to the change of circumstances.
{¶35} The judgment оf the Stark County Court of Common Pleas, Domestic Relations Division, is affirmed.
By: Delaney, J.
Wise, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
DIANA HULL NKA ORMAN v. RICHARD HULL
Case No. 2011CA0155
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
2012-Ohio-970
For the reasons stated in our accompanying Opinion on file, the judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS