Lead Opinion
I
{¶ 1} Plaintiff-appellant, Christine O’Brien, appeals the decision of the trial court adopting the magistrate’s decision. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court.
{¶ 2} According to the case, this matter was considered over three separate days of trial in domestic-relations court: January 3, 2003, Marсh 3, 2004, and September 14, 2004. The lower court considered appellee Kerry O’Brien’s motions for judicial hearing (review of administrative child-support order) and to modify child support and appellant’s motions to dismiss and to show cause.
{¶ 3} Following the submission of written closing arguments by the parties, the magistrate issued his decision with findings of fact and conclusions of law on Aрril 4, 2005. On April 25, 2005, the trial court issued its judgment entry. The trial court found that timely objections to the magistrate’s decision were not filed and that the parties waived their right to any further hearing. The trial court adopted the magistrate’s decision in its entirety and issued a judgment entry executing the same.
{¶ 4} Appellant appealed from the trial court’s April 25, 2005 judgment entry. Appellee filed a motion to dismiss the within appeal for appellant’s failure to (1) file objections to the magistrate’s decision and (2) file a sufficient transcript of the proceedings.
{¶ 5} According to the facts, the parties were divorced on March 17, 1994. Pursuant to their judgment entry of divorce, the parties were awarded shared parenting of their one minor child, Kevin O’Briеn, who was born on January 9,
{¶ 6} By an agreed judgment entry filed on February 21, 1995, the possession schedule for the parties’ minor child was modified such that appellee was tо have possession of the child on a rotating two-week schedule from Thursday to Sunday of each week. The provision for additional time, including holiday and summer vacations, was to remain in force. This provision allowed for substantially equal possession time of the child between the parties.
{¶ 7} On January 31, 2000, an administrative hearing officer from CSEA issued a recоmmendation calling for an increase in appellee’s child support obligation from $240.24 per month to $452.50 per month. Various other motions were filed by the parties, but these motions were collateral and were dismissed by the trial court. Appellant now appeals.
II
{¶ 8} Appellant’s first assignment of error states as follows: “The trial court erred by not dismissing aрpellee’s request for judicial hearing when it was undisputed that appellee failed to serve a copy of that request upon the appellant pursuant to Ohio Civ.R. 75(J).”
{¶ 9} Appellant’s second assignment of error states as follows: “The trial court erred by applying a deviation from the child support guideline schedule that is not recognized or pеrmitted under Ohio law.”
{¶ 10} Appellant’s third assignment of error states as follows: “The trial court erred by only applying the income of the parties which existed at the time of filing the motion to modify.”
III
{¶ 11} Our standard of review when reviewing an appeal from a decision of a trial court adopting a magistrate’s decision under Civ.R. 53(E)(4) is abuse of discretion.
George Thomas Contr., Inc. v. Hackmann
(Mar. 8, 2001), Franklin App. No. 00AP-877,
{¶ 12} In reviewing a trial court’s disposition of objections to a magistrate’s report, an appellate court will not reverse the trial court’s decision if it is supported by some competent, credible evidence.
Seasons Coal Co. v. Cleveland
(1984),
{¶ 14} Absent a transcript, the trial court and this court must presume regularity in the proceedings on any finding of fact made by the magistrate.
Knapp v. Edwards Laboratories
(1980),
{¶ 15} The Supreme Court of Ohio stated the following in
State v. Byrd
(1987),
This claim was not raised in the trial court and we need not consider it here.
State v. Williams
(1977),
{¶ 16} In the case at bar, appellant failed to file objections to the magistrate’s decision prior to the trial court’s April 25, 2005 judgment entry. In addition, appellant failed to file or obtain a transcript of the trial proceedings.
{¶ 17} The magistrate’s decision was issued on April 4, 2005. Appellant was required to file her objection on or before April 18, 2005, 14 days later. It is undisputed that appellant failed to do so. Therefore, by failing to file objections, аppellant has waived any error on appeal from the trial court’s judgment entry.
{¶ 18} The Supreme Court of Ohio stated the following in State ex rel. Booher v. Honda of Am. Mfg.: 1
(Emphasis added.)
{¶ 19} Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed. Nor do appellate courts have to consider an error that the complaining party could have called, but did not call, to the trial court’s attention at a time when the error could have been avoided or corrected by the trial court.
State ex rel. Quarto Mining Co. v. Foreman
(1997),
{¶20} Appellant’s failure to file objections to the magistrate’s decision in accordance with Civ.R. 53 precludes appellant from challenging the trial court’s action in regard to adopting the magistrate’s conclusions and findings on аppeal. See
Davis v. Gray,
Franklin App. No. 02AP-746,
{¶21} We find the magistrate’s decision issued on April 4, 2005, and the subsequent judgment entry of April 25, 2005, to be proper. The trial court’s actions were appropriate and do not constitute an abuse of discretion. The evidence in the record demonstrates that appellant failed to object to the magistrate’s decision in a timely mannеr. Therefore, appellant is now precluded from raising these issues on appeal. Accordingly, appellant’s assignments of error are overruled.
Judgment affirmed.
Notes
.
State ex rel. Booher v. Honda of Am. Mfg.
(2000),
Dissenting Opinion
dissenting.
{¶ 22} I respectfully dissent. The majority contends that appellant’s failure to file objections to the magistrate’s decision precluded her from filing an appeal challenging the trial court’s action in adopting the magistrate’s conclusions and findings on appeal. I would, however, hold that because the trial court did not have continuing jurisdiction pursuant to Civ.R. 75(J), any subsequent actions are null and void ab initio. In other words, the issue of appellant’s failure to object to the magistrate’s decision should be rendered moot by the fact that the magistrate nevеr had jurisdiction to conduct the judicial hearing in the first place. Conse
{¶ 23} As previously stated, I would find that the trial court did not have personal jurisdiction to conduct the judicial hearing, because service was not perfected pursuant to Civ.R. 75(J). Appellee maintains that pursuant to R.C. 3113.216, appellee was not required to perfect service of the motion upon appellant. For the following reasons, I agree with appellant and would find that the trial court did not have jurisdiction to conduct the judicial hearing.
{¶ 24} In order to effectively invoke the continuing jurisdiction of a trial court after a divorce decree has been issued and finalized, Civ.R. 75(J) requires service in accordance with Civ.R. 4 through 4.6. Civ.R. 75(J) states as follows:
{¶ 25} “Rule 75. Divorce, Annulment, And Legal Separation Actions
{¶ 26} “(A) Applicability. — The Rules of Civil Procedure shall apply in actions for divorce, annulment, legal separation, and relatеd proceedings, with the modifications or exceptions set forth in this rule.
{¶ 27} “ * * *
{¶ 28} “(J) Continuing jurisdiction. — The continuing jurisdiction of the court shall be invoked by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under Civ. R. 4 to 4.6. When the continuing jurisdiction of the court is invoked pursuant to this division, the discovery procedures sеt forth in Civ. R. 26 to 37 shall apply.”
{¶ 29} In
Hansen v. Hansen
(1985),
{¶ 31} The trial court determined, and appellee argues, that appellee was not required to serve appellant with his motion for judicial hearing. In asserting this proposition, the trial court and appellee rely on former R.C. 3113.216, which did not require appellee to serve appellant with notice of the judicial hearing. I, however, would find that the service requirements set forth in Civ.R. 75(J) prevail over the conflicting requirements set forth in former R.C. 3113.216. See
Rockey v. 84 Lumber Co.
(1993),
{¶ 32} “The Civil Rules are the law of this state with regard to practice and procedure in our state courts. The Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control ovеr subsequently enacted inconsistent statutes purporting to govern procedural matters. This interpretation is the only one consistent with the original reason for adopting Section 5(B), Article IV of the Ohio Constitution — that of constitutionally granting rule-making power to the Supreme Court.” (Citations omitted.) Id. at 224-225,
{¶ 33} Here, as I stated previously, filing the motion for judicial hearing seeking modification of support obligations, appellee was seeking to invoke the court’s continuing jurisdiction. Therefore, appellee was required to meet the service requirements set forth in Civ.R. 75(J). R.C. 3113.21 through 3113, however, proscribes that a party requesting a judicial hearing is under no obligation to serve the adverse party pursuant to Civ.R. 4. Instead, the statute rеquires that the court merely “give the obligor, obligee, and agency at least thirty days’ notice of the date, time, and location of hearing.” R.C. 3113.21(C)(1)(c)(ii). Accordingly, as the statute is in conflict with the service requirements of Civ.R. 75(J) on a procedural matter, the requirements of R.C. 3113.216 are “invalid and of no force and effect” and Civ.R. 75(J) prevails. See Rockey, supra.
{¶ 34} As previously stated, having determined that the trial court did not have continuing jurisdiction pursuant to Civ.R. 75(J), I would find that the trial court’s actions and judgments are null and void ab initio. See
Hansen,
supra, quoting
In re James
(Dec. 24, 1981), Henry App. No. 7-80-10,
{¶ 35} Moreover, appellee’s motion to dismiss appellant’s apрeal should be denied. In light of finding the trial court’s actions during the judicial hearing null and void ab initio, the issue of appellant’s failure to object to the magistrate’s decision should be rendered moot. Moreover, because appellant, in her first assignment of error, seeks to appeal conclusions of law and not factual findings, I would also find that apрellant did not need to provide this court with a transcript of the hearings. For these reasons, appellee’s motion to dismiss this appeal should be denied. Accordingly, I would reverse the judgment of the trial court.
{¶ 36} Furthermore, even if I disregard the trial court’s lack of jurisdiction, I would still conclude that appellant was permitted to raise her first assignment of error on appeal as she was not required to file objections to the magistrate’s decision with regard to that issue.
{¶ 37} It is undisputed that appellant failed to file objections to the magistrate’s decision. The majority contends that by failing to do so, appellant is now precluded from filing an appeal challenging the trial court’s action in adopting the magistrate’s conclusions and findings on appeal. In so holding, the majority relies on Civ.R. 53(E)(3)(b).
{¶ 38} Under Civ.R. 53(E)(3)(a), a party disapproving of a magistrate’s decision has 14 days from the filing of the decision to file written objections. If no timely objections are filed, Civ.R. 53(E)(3)(b) provides as follows:
{¶ 39} “A party shall not assign as error on appeal the court’s adoption of any finding of fact оr conclusion of law unless the party has objected to that finding or conclusion under this rule.”
{¶ 40} While it is true that Civ.R. 53(E)(3)(b) provides that a party’s failure to timely object precludes that party from appealing the magistrate’s findings of fact or conclusion of law, another section of Civ.R. 53, Civ.R. 53(E)(4)(a), provides that “[t]he court may adopt the magistrate’s decision if no written objections are filed unless it determines that there is an error of law or other defect on the face of the magistrate’s decision.” In light of this section, I am compelled to conclude, as did other appellate courts within this state, that an appellant may file an appeal based on a claimed error of law that is apparеnt from the face of the magistrate’s decision even though no earlier objection was raised. See
Group One Realty, Inc. v. Dixie Intl. Co.
(1998),
{¶ 41} In the instant matter, appellant’s first assignment of error is based on a claimed error of law. More specifically, appellant’s assertion that the trial court erred in not dismissing appellee’s request for judicial hearing when it is undisputed that apрellee failed to serve a copy of that request upon appellant pursuant to Civ.R. 75(J) is an error of law that is apparent from the face of the magistrate’s decision. In the decision, the magistrate relied on former R.C. 3113.216 in finding that a party is not required to serve the opposing party with notice of a judicial hearing. The trial court adoptеd the magistrate’s decision. Appellant contends that in adopting the magistrate’s decision, the trial court failed to correct an apparent error of law in that Civ.R. 75(J) requires a party to serve an opposing party with notice of a judicial hearing. Such an assertion does not involve any factual determination and is based entirely on an error of law that is apparent from the face of the decision. Accordingly, I would find that appellant is not precluded from filing an appeal of the trial court’s adoption of the magistrate’s decision with regard to appellant’s first assignment of error. As the court in
Caskey v. Lordstown Dev. Corp.
(July 12, 2000), Trumbull App. No. 99-T-0034,
{¶ 42} The majority also relies on the Supreme Court of Ohio’s decision in
Booher v. Honda of Am. Mfg.
(2000),
{¶ 43} For the foregoing reasons, had I decided to disregard the court’s lack of jurisdiction, I would nevertheless dissent from the majority and permit appellant to continue her appeal as to her first assignment of error.