IN RE: M.O.
C.A. Nos. 28351, 28371, 28383
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 20, 2017
[Cite as In re M.O., 2017-Ohio-7691.]
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 15-02-120
CARR, Judge.
{1} Appellant Father appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that granted legal custody to Mother. He also appeals the juvenile court‘s subsequent nunc pro tunc order addressing visitation. Mother too filed a notice of appeal from the trial court‘s dispositional order. The three appeals have been consolidated for purposes of briefing, argument, and disposition. This Court affirms the dispositional order, vacates the nunc pro tunc order, and dismisses Mother‘s appeal.
I.
{2} Mother and Father enjoyed parental rights and responsibilities regarding their child M.O. pursuant to a shared parenting order issued by the Stark County Family Court, Juvenile Division. In February 2015, Summit County Children Services Board (“CSB“) filed a complaint alleging the child to be dependent based, in part, on an act of intimate partner violence
{3} All parties filed dispositional motions: CSB moved to terminate protective supervision; Mother moved for legal custody; and Father moved for legal custody, or in the alternative, to modify the shared parenting plan regarding visitation. After conducting a dispositional hearing, the magistrate placed the child in the legal custody of Mother; terminated protective supervision; granted Father visitation with the child from Thursday through Monday during the first three weeks of each month; ordered the parties to abide by the Stark County Parenting Time Schedule for vacations, holidays, and days of special meaning; and ordered Father to pay child support. Both the parenting time schedule and child support worksheet were attached to the decision. The trial court adopted the orders the same day.
{4} Father filed timely objections to the magistrate‘s decision. He argued that the magistrate erred by considering only the best interest of the child, because the award of legal custody to Mother effectively modified the parents’ prior shared parenting agreement. Father argued, therefore, that the magistrate was required to determine custody in consideration of (1) whether a change in circumstances of the child, the child‘s residential parent, or either parent subject to the shared parenting decree had occurred, and (2) the best interest of the child,
{5} Mother responded in opposition, arguing that the award of legal custody did not modify the parties’ prior shared parenting agreement, but rather terminated it. She argued, therefore, that the matter was governed by
{6} The juvenile court acknowledged that the parties had been subject to a prior shared parenting agreement, but rejected the arguments that the court must render a final disposition for the child in consideration of
{7} In addition, Mother wrote a letter to the juvenile court requesting clarification regarding Father‘s visitation with the child. The magistrate had ordered that Father would have visitation the first three weekends of every month, but that Mother would retain the child during the last weekend. When the juvenile court overruled Father‘s objections and independently entered judgment, however, it ordered simply that Father would have visitation with the child every weekend. Father opposed Mother‘s motion for an order clarifying that she was entitled to keep the child the last weekend of every month. On September 22, 2016, the juvenile court issued a nunc pro tunc order amending the visitation order to indicate that Mother has the child the fourth weekend of every month. Father filed a timely appeal from the September 22, 2016 order.
{8} This Court consolidated the three appeals for review.
II.
Appeal No. 28351
{9} In this appeal, Father challenges the juvenile court‘s August 17, 2016 dispositional order, raising three assignments of error. We address some assignments of error out of order to facilitate review.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ORDERING FATHER TO PAY CHILD SUPPORT WITHOUT ATTACHING OR INCORPORATING A CHILD SUPPORT WORKSHEET TO ITS JUDGMENT ENTRY.
{10} Father argues that the juvenile court‘s “order requiring Father to pay child support was defective and void[,]” because the court failed to attach a child support worksheet to the judgment. This Court disagrees.
{11} It is well settled that, in issuing an order for child support, a child support worksheet must be completed and made a part of the record. Marker v. Grimm, 65 Ohio St.3d 139 (1992), paragraph one of the syllabus. In reliance on that holding, this Court recognizes that it is sufficient that the child support worksheet be attached to the magistrate‘s decision that has been approved by the trial court. See, e.g., Hayne v. Hayne, 9th Dist. Medina No. 07CA0100-M, 2008-Ohio-4296, ¶ 19. To the extent that Father requests reversal and remand to the juvenile court for incorporation of the child support worksheet into the final judgment, the trial court‘s adherence to its prior order does just that. Father‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ORDERING THE PARTIES TO ABIDE BY A PARENTING TIME SCHEDULE WITHOUT ATTACHING THE SCHEDULE TO ITS JUDGMENT ENTRY.
{12} Father argues that the juvenile court erred by failing to attach the Stark Family Court Parenting Time Schedule to its judgment wherein it overruled Father‘s objections and adopted the magistrate‘s decision. This Court disagrees.
{13} Father argues that the visitation order is defective because it does not incorporate all documents necessary to give the parties an understanding of their rights and obligations. However, when the juvenile court initially adopted the magistrate‘s decision, it ordered the attachment of the parenting time schedule. Notwithstanding Father‘s assertion to the contrary, the juvenile court‘s initial adoption of the magistrate‘s decision was not a mere interlocutory order, but rather a final judgment. See Miller v. Miller, 9th Dist. Medina No. 10CA0034-M, 2011-Ohio-4299, ¶¶ 17-18. Later, in overruling Father‘s objections, the juvenile court enunciated a visitation order, including that the parties would abide by the Stark Family Court Parenting Time Schedule. The trial court further ordered that “[a]ll prior orders not in direct conflict with
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN AWARDING MOTHER LEGAL CUSTODY WITHOUT CONSIDERING THE FACTORS UNDER
R.C. 3109.04(E) .
{14} Father argues that the juvenile court erred by failing to consider whether there had been a change in circumstances as required by
{15} An award of legal custody by the juvenile court will only be reversed for an abuse of discretion. In re T.A., 9th Dist. Lorain Nos. 15CA010858, 15CA010859, 2016-Ohio-5552, ¶ 5. Here, however, Father does not argue that the juvenile court abused its discretion in deciding to award legal custody to Mother based on the evidence. Instead, Father argues that the juvenile court misinterpreted the statutory framework applicable to this matter and failed to apply the relevant statutory provision when awarding legal custody to Mother. A trial court‘s interpretation and application of a statute is an issue of law, which this Court reviews de novo. Gehlmann v. Gehlmann, 9th Dist. Medina No. 13CA0015-M, 2014-Ohio-4990, ¶ 6. “A de novo review requires an independent review of the trial court‘s decision without any deference to the
{16} Father relied on In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, below for the proposition that, before the juvenile court could award legal custody to Mother, it had to apply the factors in
{17} On appeal, Father has abandoned his reliance on In re James.2 He now relies on In re Poling, 64 Ohio St.3d 211 (1992), in support of his argument that the juvenile court was required to apply
{18} In In re Poling, a mother was awarded custody of two children pursuant to the terms of a divorce decree. Id. at 211. Some years later, the local children services agency filed a complaint alleging that the children were neglected and dependent. Id. The children were adjudicated dependent children, and the juvenile court ultimately awarded the father legal custody. Id. at 212. The appellate court reversed, concluding that the juvenile court lacked jurisdiction to modify the prior custody order issued pursuant to
{19} Assuming without deciding that the holding in paragraph two of the syllabus of In re Poling is applicable to this case, this Court concludes that any error by the juvenile court in refusing to apply
{20} In this case, in applying
Judgment affirmed.
{21} Mother timely filed a notice of appeal from the juvenile court‘s judgment of disposition issued August 17, 2016. She has failed, however, to file a merit brief or assert any assignments of error. As Mother has effectively abandoned her appeal, App. No. 28371 is dismissed. See Badovick v. Badovick, 8th Dist. Cuyahoga Nos. 74273, 75116, 2000 WL 640589, *1 (May 18, 2000).
Appeal No. 28371 dismissed.
Appeal No. 28383
{22} Father appealed the juvenile court‘s September 22, 2016 nunc pro tunc order in which it modified the terms of visitation enunciated in the judgment granting legal custody to Mother.
ASSIGNMENT OF ERROR I
THE TRIAL COURT LACKED JURISDICTION TO ISSUE A NUNC PRO TUNC JUDGMENT ENTRY WITHOUT SEEKING LEAVE FROM THE COURT OF APPEALS AFTER THE APPEAL WAS ALREADY DOCKETED AT THE APPELLATE COURT.
{23} Father argues that the juvenile court lacked jurisdiction to issue the September 22, 2016 nunc pro tunc order without leave of this Court, as Father‘s notice of appeal from the dispositional order had been filed on August 25, 2016. This Court agrees.
{24} Although
{25} The September 22, 2016 order is vacated.
Judgment vacated.
III.
{26} Regarding appeal number 28351, Father‘s second, third, and fourth assignments of error are overruled. The August 17, 2016 dispositional order is affirmed. As Mother abandoned her appeal, appeal number 28371 is dismissed. Regarding appeal number 28383, Father‘s first assignment of error is sustained. The September 22, 2016 nunc pro tunc order is vacated.
Appeal No. 28351 affirmed
Appeal No. 28371 dismissed.
Appeal No. 28383 vacated.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
SCHAFER, J. CONCURS.
HENSAL, P. J. CONCURRING IN JUDGMENT ONLY.
{27} I concur in judgment only in regard to Appeal No. 28351. Specifically in regard to Father‘s fourth assignment of error, I would disregard Father‘s argument as irrelevant to the issue of the award of legal custody under these circumstances. Where a child has been adjudicated dependent, the juvenile court need only consider the best interest of the child before awarding legal custody to any person. In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12. I would not review this matter in terms of either modifying or terminating a prior shared parenting plan, but simply from the perspective of whether an award of legal custody of a dependent child was warranted in the child‘s best interest pursuant to Revised Code Chapter 2151.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
DAVID LOWRY, Attorney at Law, for Appellant.
JAMES ARMSTRONG, Guardian ad Litem.