In re E.S.K.
Rendered on August 9, 2011
Law Offices of Eugene F. Battisti, Jr., Eugene F. Battisti, Jr., and Kristine M. McDonnell, for appellant.
Robert C. Hetterscheidt, for appellee.
Blythe Bethel, Guardian ad Litem.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
KLATT, J.
{¶1} Plаintiff-appellant, Edward S. Kindler, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, that: (1) granted defendаnt-appellee, Nichole C. Sweitzer, legal custody of the minor child, E.S.K., and made Sweitzer the residential parent; (2) allocated other parental rights аnd responsibilities and; (3) ordered Kindler to pay child support. Because Kindler has not shown that the trial court abused its discretion, we affirm.
{¶2} Although they were never married, Kindler is the biological father and Sweitzer is the biological mother of a minor child, E.S.K., born July 10, 2007. On March 24, 2008, Kindler filed a complaint for custody of the minor child and for аllocation of parental rights and responsibilities. Kindler alleged that it was in the best interest of the minor child that he be designated the residential parent and lеgal custodian. Thereafter, Sweitzer filed a motion seeking temporary child support from Kindler. The matter was referred to a magistrate who held a hearing on January 12, 2009, at which the parties entered into an agreed interim order that addressed parenting time and the conduct of the parties when exchanging thе child. The interim order also imposed on the parties certain other requirements and restrictions regarding their contact with one another.
{¶3} On March 10, 2009, the magistrate issued a decision awarding temporary legal custody to Sweitzer and ordering Kindler to pay temporary child support. The magistrate also allоcated between the parties other financial and insurance obligations for the minor child. Kindler filed an objection to the amount of child support оrdered by the magistrate.
{¶4} The magistrate held a second hearing on October 13, 2009 at which the parties entered into another agreed interim order addressing quеstions of drug use by the parties. However, the prior orders also remained in effect.
{¶5} The magistrate held a third hearing on March 5, 2010 on the merits of Kindler‘s complаint and on his objection to the temporary child support order. Kindler appeared pro se. Sweitzer appeared with counsel. A guardian ad litеm (“GAL“) appeared on behalf of the minor child. Kindler‘s only witness was the GAL. The GAL
{¶6} The magistrate issued a decision on March 15, 2010 dismissing both Kindler‘s complaint and his objection to the temporary child support order. The magistrate‘s decision also terminated all temporary orders including child support. Kindler timely filed an objection to the magistrate‘s decision.
{¶7} On June 28, 2010, the trial court held a hearing on Kindler‘s objection. Thereafter, the trial court entered a final judgment that: (1) designated Sweitzer as the residential parent and legal custodian of thе minor child; (2) awarded parenting time between the parties; (3) ordered Kindler to pay child support of $421.95 per month plus two percent processing charge and denied Kindler a deviation from the guideline amount; (4) ordered Kindler to maintain all current levels of medical and hospitalization insurance for the bеnefit of the minor child; and (5) allocated between the parties the cost of any extraordinary uncovered medical, dental, and other healthcаre expenses of the minor child.
{¶8} Kindler now appeals assigning the following error:
THE TRIAL COURT ERRED AS MATTER OF LAW AND ABUSED ITS DISCRETION BY REINSTATING THE DISMISSED TEMPORARY ORDERS AS A FINAL ORDER WITHOUT A FULL HEARING AND TESTIMONY FROM THE PARTIES.
Applicable Legal Framework and Standard of Review
{¶9} Pursuant to
{¶10} The trial court had jurisdiction to determine the residential parent and legal custodian under
Appellant‘s Assignment of Error
{¶11} By his only assignment of error, Kindler argues that the trial court abused its discretion because the trial court failed to conduct a second evidentiary hearing in addressing Kindler‘s objections to the magistrate‘s decision. Kindler also argues that the trial court improperly reinstated thе dismissed temporary orders. We disagree with both arguments.
{¶12} As previously noted, this matter was initially referred to a magistrate pursuant to
{¶13} In ruling on objections to a magistrate‘s decision, a trial court must conduct an independent review of any issue of fact or law that the magistrate has determined.
{¶14} Kindler had the opportunity to present any evidence supporting his claim at the evidentiary hearing before the magistrate. Neither the record nor Kindler‘s appellate brief indicate what specific additional evidence Kindler might have presented at a second evidentiary hearing or why, with reasonable diligence, he could not have presented that evidence for consideration by the magistrate. See
{¶15} Moreover, contrary to Kindler‘s assertion, the trial court held a hearing on Kindler‘s objection. Each party was represented by counsel. There is no trаnscript of that hearing in the record. Therefore, there is no indication in the record that Kindler or his
{¶16} Kindler is also mistaken in arguing that the trial court improрerly reinstated the temporary orders. The trial court did not reinstate the temporary orders. Rather, the trial court exercised its de novo review of thе magistrate‘s decision under
{¶17} For the foregoing reasons, we overrule Kindler‘s sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BROWN and FRENCH, JJ., concur.