IN RE: H.R.K., A Minor Child [Appeal By M.J.K., Father]
No. 97780
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 6, 2012
[Cite as In re H.R.K., 2012-Ohio-4054.]
CARLA D. MOORE, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. CU 08139384
BEFORE: Moore, J., Belfance, J., and Whitmore, P.J.*
(*Sitting by assignment: Judges of the Ninth District Court of Appeals)
RELEASED AND JOURNALIZED: September 6, 2012
Eugene L. Kramer
1422 Euclid Avenue
Suite 545
Cleveland, Ohio 44115
FOR APPELLEE
H.L.H., pro se
11802 Franklin Boulevard
Lakewood, Ohio 44107
GUARDIAN AD LITEM
Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
{¶2} M.J.K. appeals from the judgment of the Juvenile Division of the Court of Common Pleas of Cuyahoga County. This court reverses and remands this matter for further proceedings consistent with this opinion.
I.
{¶3} M.J.K. (“Father“) and H.H. (“Mother“) have one minor child in common. The child is in Father‘s custody. In 2011, the Cuyahoga County Juvenile Court issued an order allowing Mother weekly periods of supervised visitation with the child at a certain facility. The parties agreed to schedule this visitation on Thursdays from 4 until 6 p.m. Father contends that, due to his work schedule, he arranged for another adult to transport the child to the facility for these periods of visitation. However, a few months after the visitation at the facility commenced, Father learned that this individual could no longer transport the child for visitation. Father purportedly contacted the facility, which informed him that it had no other dates and times available that would accommodate his work schedule. As a result, Father filed a motion with the trial court to modify the visitation order. Thereafter,
{¶4} While Father‘s motion was pending, the trial court issued a show cause order requiring Father to appear at a contempt hearing on November 18, 2011, before a court magistrate regarding his failure to abide by the terms of the visitation order. Father responded to the show cause order by filing an answer and memorandum in which he claimed that his compliance with the visitation order had become impossible due to circumstances outside of his control.
{¶5} After the hearing, the magistrate entered a “Magistrate‘s Pre-trial Order,” in which the magistrate set forth,
IT IS ORDERED THAT: [Father ]is found to be in Contempt of Court.
[Father is fined $150.00 and sentenced to three (3) days in jail. Fine is to be paid within 30 days[.]
Purge Order: Jail sentence is stayed. If [F]ather violates visitation schedule again jail sentence will be imposed.
(Unbracketed capitalization in the original.)
{¶6} Father filed a motion to set aside the “magistrate‘s order.” The trial court denied Father‘s motion in a journal entry and adopted the magistrate‘s “decision.” Father timely appealed from the trial court‘s order and presents two assignments of error for our review. We have consolidated the assignments of error to facilitate our discussion.
I. The trial court abused its discretion and acted against the manifest weight of the evidence in finding that [Father] was in contempt of court.
II. The trial court erred in imposing a fine against [Father] for contempt of court without affording [Father] an opportunity to [p]urge himself of contempt with respect to that portion of the penalty.
{¶7} In his first assignment of error, Father argues that the trial court‘s contempt finding was against the manifest weight of the evidence because circumstances beyond Father‘s control had made it impossible for him to comply with the visitation order. In his second assignment of error, Father argues that the trial court erred by failing to provide him the opportunity to purge the fine imposed against him. We decline to reach the merits of Father‘s assignments of error because we conclude that this matter must be remanded to the trial court for further proceedings in compliance with the Rules of Juvenile Procedure.
{¶8} Initially, we note that the record before us contains no transcript of the magistrate‘s hearing. Further, the magistrate‘s adjudication was erroneously captioned a “magistrate‘s pre-trial order,” when the substance of the adjudication is that of a “magistrate‘s decision.” Adjudications titled “pretrial orders” under former
{¶9} In contrast to a magistrate‘s order, a magistrate‘s decision is governed by
{¶10} A party may object to the magistrate‘s decision within 14 days of its filing.
{¶11} To aid in the court‘s “independent review,” if the objecting party has challenged a magistrate‘s finding of fact, the party must supply the trial
{¶12} This court has held that it is an abuse of a trial court‘s discretion to adopt a magistrate‘s decision over an objection to factual findings prior to its receipt of a timely requested transcript or other materials necessary to properly conduct an independent review of the matter. See In re R.C., 8th Dist. No. 96396, 2011-Ohio-4641, ¶ 8, citing Savioli v. Savioli, 99 Ohio App.3d 69, 71, 649 N.E.2d 1295 (8th Dist.1994) (holding that “a trial court abuses its discretion when it rules on objections to a [magistrate‘s] report without the benefit of a transcript“); compare In re Magar v. Konyves, 8th Dist. No. 85832, 2005-Ohio-5723, ¶ 16 (regularity of proceedings presumed where no transcript of magistrate hearing was filed in support of objections).
{¶13} With the distinctions between magistrates’ orders and magistrates’ decisions in mind, we turn to the “magistrate‘s pre-trial order” at issue in the present case. The language of this “pre-trial order” purports to be dispositive of the issue of contempt. See Kapadia v. Kapadia, 8th Dist. No. 96910, 2012-Ohio-808, ¶ 3-5 (an order containing both a finding of contempt and imposition of a sentence, even if provided the opportunity to
{¶14} Because the record contains no transcript of the November 18, 2011 proceedings before the magistrate, we cannot discern how the trial court could have conducted an independent review of the factual issues that Father argues made it impossible for him to comply with the trial court‘s visitation order. For the foregoing reasons, we conclude that this matter must be remanded to the trial court for further proceedings consistent with
{¶15} Accordingly, the trial court‘s judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with the Rules of Juvenile Procedure. Based on the nature of our remand, we decline to address the merits of Father‘s assignments of error because they are not yet ripe for review.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
CARLA D. MOORE, JUDGE*
BETH WHITMORE, P.J.,* and
EVE V. BELFANCE, J.,* CONCUR
(*Sitting by assignment: Judges of the Ninth District Court of Appeals)