In re K.P.R.
{¶ 1} The biological father of a 15-year-old boy asks this court to overturn a decision of the Warren County Juvenile Court granting the stepfather’s request to have a set schedule of visitation with the boy after the boy’s mother died suddenly. We affirm the juvenile court’s visitation decision, finding that the juvenile court had jurisdiction to consider the visitation request and that the father waived his other arguments when he failed to object to the magistrate’s decision, but vacate the juvenile court’s property order as being without jurisdiction.
{¶ 2} K.P.R. lived with his mother and stepfather, and the father exercised parenting time. The boy’s parents were never married, and the stepfather was
{¶ 3} In September 2010, the stepfather filed a motion in juvenile court for custody or for visitation. The juvenile court magistrate issued a 14-page decision that indicated that the stepfather was not seeking custody at that time but wanted a set schedule for visitation. The magistrate noted that the father said he did not oppose visitation but didn’t want a set schedule and wanted to control the amount of visitation. The magistrate awarded visitation for the stepfather in conformance with the juvenile court’s “Basic Parenting Schedule, Basic I.”
{¶ 4} While no order is part of the record provided to this court, it appears that the court permitted the father to take some of KJP.R.’s belongings from the stepfather’s home after the mother’s death. The father also removed furniture from KP.R.’s room at the same time. The magistrate ordered the father to return to the stepfather the bed, mattress, box springs, dresser with mirror, and nightstand.
{¶ 5} The juvenile court adopted the decision on the same day it was filed. Neither party objected to the magistrate’s decision. This appeal was taken by the father, raising six assignments of error for our review.
{¶ 6} The first question that this court must address is the consequence of the father’s failure to file objections to the magistrate’s decision. The father’s appellate counsel argues that the father was precluded from filing objections with the juvenile court because the juvenile court adopted the magistrate’s decision. The juvenile rules, as outlined below, clearly indicate otherwise. Moreover, the magistrate’s decision contained a number of paragraphs at the end of the decision that outlined the procedures under
{¶ 7} A party may file written objections to a magistrate’s decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by
{¶ 8} The court may enter a judgment either during the 14 days permitted by
{¶ 9}
{¶ 10} This court previously ruled that unless the appellant argues a “claim of plain error,” the appellant has waived the claimed errors not objected to below. See State v. Shie, Butler App. No. CA2007-02-038,
{¶ 11} Accordingly, the father has waived most, but not all, of his assignments of error by failing to object to the magistrate’s decision. Two of the father’s assignments of error — the first and sixth — challenge the subject-matter jurisdiction of the juvenile court, and the fifth assignment of error will be incorporated into the first assignment of error. The issues raised in those assignments will be discussed below.
{¶ 12} Assignment of Error No. 1:
{¶ 13} “The trial court erred in not dismissing the stepfather’s motion for custody.”
{¶ 14} In this assignment of error, the father argues that the juvenile court did not have jurisdiction over a case filed under the nonparent-visitation statute of
{¶ 16} The stepfather filed a motion for custody or for parenting time. The father argues that the juvenile court is a court of limited jurisdiction, possessing only those powers the Ohio General Assembly conferred upon it. Section 4(B), Article IV of the Ohio Constitution. The father’s argument principally relies on a statute and an Ohio Supreme Court case.
{¶ 17} Specifically, the father cites
{¶ 18} The Gibson court said that visitation and custody are related but distinct concepts. The Gibson court found that in a case in which a nonparent (grandparent) sought only visitation, a juvenile court may not determine that issue pursuant to its authority to determine custody of children under
{¶ 19} The Gibson court further noted three statutes that permit nonparental visitation:
{¶ 20} The Gibson court found that the circumstances in its case did not meet the criteria of
{¶ 21} In the case at bar, Gibson does not preclude the juvenile court from hearing the stepfather’s motion for visitation, because this case involves a
{¶ 22}
{¶ 23} If the stepfather qualifies as a “relative” under
{¶ 24} The Ninth Appellate District in Goeller v. Lorence, Lorain App. No. 06CA008883,
{¶ 25} The stepfather here is related by affinity, as the spouse of the child’s mother. The father now argues that the stepfather is a former relative because the stepfather’s wife is deceased. This argument is rejected on the basis of Goeller, which indicated that the widow of the child’s parent who remarried was still related by affinity, since that person was still the deceased parent’s widow. See id. at ¶ 12, 13, (death did not sever relationship by affinity with spouse; stepparent had standing as a relative to request visitation even though he remarried after the death of his spouse, the child’s mother). In this case, the stepfather is the deceased parent’s widow. Therefore, the stepfather had standing to move for visitation.
{¶ 26} Accordingly, the stepfather is a relative who could request visitation under
{¶ 27} Assignment of Error No. 2:
{¶ 28} “The trial court erred in granting parenting time pursuant to Ohio Revised Code § 3109.51(d).”
{¶ 29} Assignment of Error No. 3:
{¶ 30} “The court did not give the parent’s wishes sufficient weight in allowing parenting time with a stepfather.”
{¶ 31} Assignment of Error No. 4:
{¶ 32} “The court erred in the amount of parenting time it awarded to the stepfather.”
{¶ 33} Based on the father’s failure to raise these issues in objections to the magistrate’s decision and his failure to claim plain error on appeal, the father waives any error for his second, third, and fourth assignments of error, and those assignments of error are overruled.
{¶ 34} Assignment of Error No. 6:
{¶ 35} “The juvenile court erred in deciding property issues.”
{¶ 36} The father argues that the juvenile court had no jurisdiction to determine “property settlements” in this visitation case. This assignment of error is based on the juvenile court’s order that the father return furniture he
{¶ 37} The father again cites
{¶ 38} The original order is not part of the record provided to this court. However, we rely on two cases to assist this court in finding that the juvenile court did not have jurisdiction over the property at issue.
(¶ 39} In Miller ex rel. Lafountain v. McMichael, Paulding App. No. 11-03-08,
{¶ 40} The appellate court said that there was no authority granting a juvenile court jurisdiction to determine matters of a decedent’s estate. “Thus, while the Paulding County Probate Court would have had jurisdiction to determine whether Appellee’s support arrearages were an asset of Miller’s estate, the Paulding County Juvenile Court lacked such jurisdiction. Accordingly, the judgment in this case must be vacated.” (Footnote omitted.) Id. at ¶ 12.
{¶ 41} In re Gerken (Nov. 9, 1990), Wood App. No. WD-90-9,
{¶ 42} In the case at bar, we cannot locate any authority giving the juvenile court jurisdiction to order the disposition of property from the mother and stepfather’s home. The father’s sixth assignment of error is sustained, and the juvenile court’s order to return the furniture to the stepfather is vacated.
{¶ 43} The judgment is affirmed as to the juvenile court’s visitation order and vacated as to the order requiring the father to return furniture to the stepfather.
Judgment affirmed in part and vacated in part.