Ramsey v. RamseyRamsey v. Ramsey
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, James R. Ramsey, appeals from a judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting the post-decree motion for modification of parental rights and responsibilities of plaintiff-appellee, Kristin Ramsey (n.k.a. Montgomery). Because the trial court did not err in granting appellee‘s motion for modification and in awarding appellee attorney fees, we affirm.
I. Facts and Procedural History
{¶ 2} Appellant and appellee were married and divorced twice. As part of their January 29, 2009 decree of divorce, the parties entered into an agreed shared parenting plan for their minor daughter born on September 26, 1996.
{¶ 4} Also on February 22, 2012, the trial commenced on the various underlying motions. Testimony continued February 23 and 29, and March 1, 21, and 22, 2012 before the magistrate. On March 23, 2012, the magistrate conducted an in camera interview of the minor child. The GAL filed a preliminary report on February 13, 2012 and a second report and recommendation on February 22, 2012.
{¶ 5} On March 2, 2012, after the trial had commenced, defendant filed a motion to set aside the magistrate‘s February 22, 2012 order denying his motions for removal of the GAL and for psychological evaluations. Both parties submitted proposed findings of fact and conclusions of law on May 7, 2012.
{¶ 6} On June 27, 2012, appellant‘s counsel filed a motion to withdraw as counsel of record, and the trial court approved his request in a June 29, 2012 judgment entry. Since that time, appellant has proceeded in this action pro se.
{¶ 7} The magistrate issued a final decision on August 2, 2012 which granted appellee‘s motion to modify the shared parenting plan, denied appellee‘s motion to reallocate the GAL fees, denied both parties’ motions for attorney fees, and denied appellee‘s motion for
{¶ 8} On September 4, 2012, appellant filed objections to the magistrate‘s decision after the expiration of the 14-day time limit in
{¶ 9} In response, appellee filed an October 3, 2012 motion to dismiss appellant‘s objections to the magistrate‘s decision as untimely, as well as a motion for attorney fees.
{¶ 10} Appellant proceeded to file various motions, including a motion for contempt against appellee, a motion to add the former GAL as a party, a motion to compel discovery, a motion for attorney fees, and motions to strike various items from the record. On November 15, 2012, the trial court appointed a new GAL in response to appellant‘s motion for dismissal of the first GAL.
{¶ 11} Appellee also filed various motions, including a motion to modify the child support and tax dependency exemption provisions of the shared parenting plan, a motion for contempt against appellant, a motion for attorney fees, and motions to compel discovery.
{¶ 12} On May 20, 2013, the newly appointed GAL filed a report recommending the allocation of parental rights and responsibilities from the August 6, 2012 entry and decision be approved. Following a May 29, 2013 hearing, the trial court overruled appellant‘s objections and upheld the magistrate‘s decision modifying the shared parenting plan, journalizing its decision on August 23, 2013. In that same judgment entry, the trial court granted appellee‘s motion for attorney fees, ordering appellant to pay $650.00 per month for 30 months. Appellant timely appeals.
{¶ 13} After appellant filed his notice of appeal with this court, the parties have continued to file various motions in the trial court. In particular, appellant filed an October 9, 2013 motion for recusal or disqualification of the magistrate, followed by an amended motion for recusal or disqualification on October 30, 2013. The parties agree that appellant also filed a
{¶ 14} Appellant assigns the following errors for our review:
[1.] The trial judge failed to perform a de novo review of the magistrate‘s decision.
[2.] The trial magistrate based her ruling on ex parte communications.
[3.] The trial court failed to address appellant‘s amended objections.
[4.] The trial court improperly applied
R.C. 3109.04(E)(2)(b) .[5.] The trial court failed to properly apply the best interest test required by
R.C. 3109.04(F)(1) .[6.] The trial court‘s attorney fee award is not properly based on case record.
[7.] The trial court abused its discretion when it overruled appellant‘s motion to remove the GAL.
[8.] The trial court abused its discretion when it modified the 529 plan provision of the parties’ SPP.
[9.] The trial court engaged in a pattern of conduct which denied appellant‘s right to due process.
III. First Assignment of Error – De Novo Review of Magistrate‘s Decision
{¶ 15} In his first assignment of error, appellant contends the trial court erred when it failed to conduct a de novo review of the magistrate‘s findings of fact and conclusions of law. More specifically, appellant argues the trial court did not review the transcript of the proceedings before the magistrate.
{¶ 16} In reviewing objections to a magistrate‘s decision, the trial court has the ultimate authority and responsibility over the magistrate‘s findings and rulings. Sweeney v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 13, quoting Hartt v. Munobe, 67 Ohio St.3d 3, 5-6 (1993). The trial court must undertake an independent review of the magistrate‘s report to determine any errors. Hartt at 5-6, citing Normandy Place Assoc. v. Beyer, 2 Ohio St.3d 102 (1982), paragraph two of the syllabus.
{¶ 18}
{¶ 19} It is undisputed that appellant did not timely file either his objections or the transcript of proceedings in support of his objections under
{¶ 20} A court is not required to address untimely objections. Tomety v. Dynamic Auto Serv., 10th Dist. No. 09AP-982, 2010-Ohio-3699, ¶ 13. If a party fails to file written objections within the requisite 14 days but files objections after the expiration of the 14-day period and before the court‘s entering final judgment, the court may consider the objections sua sponte, and such consideration will be construed as the granting of leave to file late objections pursuant to
{¶ 21} Here, the trial court stated in its judgment entry that appellant‘s objections “should be dismissed for failure to timely file his objections * * * as well as for failure to file a transcript of the proceedings.” (R. 546, at 2.) Rather than dismissing appellant‘s objections on that basis, however, the trial court decided that “in the interests of justice” it would “address [appellant‘s] objections on their merits.” (R. 546, at 2.) We construe the trial court‘s decision to consider appellant‘s untimely objections “in the interests of justice” as the trial court implicitly granting leave to file outside the time constraints of
B. Untimely Transcript
{¶ 22} The trial court noted that appellant untimely filed his objections and further noted appellant “failed to file a transcript of the proceedings before the Magistrate.” (R. 546, at 2.) Appellant did in fact file the transcript on November 5, 2012, approximately two months after he filed his objections.
{¶ 23} Ordinarily, a trial court must consider a submitted transcript before ruling on objections to a magistrate‘s decision. Perry v. Joseph, 10th Dist. No. 07AP-359, 2008-Ohio-1107, ¶ 20, citing State v. Daskalov-DeBlanco, 10th Dist. No. 96APA04-529 (Nov. 21, 1996). See also Lassiter v. Lassiter, 1st Dist. No. C-020494, 2003-Ohio-2333, ¶ 9 (noting “courts have held that a trial court abuses its discretion in ruling on objections
{¶ 24} We overrule appellant‘s first assignment of error.
IV. Second Assignment of Error – Ex Parte Communications
{¶ 25} Appellant argues in his second assignment of error the trial court erred in adopting the magistrate‘s decision because the magistrate based that decision on ex parte communications. Both parties agree appellant‘s second assignment of error is the subject of a pending
V. Third Assignment of Error – Amended Objections
{¶ 26} In his third assignment of error, appellant argues the trial court failed to address appellant‘s amended objections to the magistrate‘s decision. Appellant filed his amended objections on October 30, 2012, more than two months after the magistrate‘s decision and well outside the time constraints of
{¶ 28} We overrule appellant‘s third assignment of error.
VI. Fourth Assignment of Error - Trial Court‘s Application of R.C. 3109.04(E)
{¶ 29} In his fourth assignment of error, appellant asserts the trial court misconstrued
{¶ 30} Divorce and ancillary custody actions are purely matters of statute. Hanna v. Hanna, 177 Ohio App.3d 233, 2008-Ohio-3523, ¶ 9 (10th Dist.). In reviewing statutes, we are required ” ‘to give effect to the words used and not to insert words not used.’ ” In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, ¶ 13, quoting State ex rel. Richard v. Bd. of Trustees of Police & Firemen‘s Disability & Pension Fund, 69 Ohio St.3d 409, 412 (1994).
{¶ 31}
{¶ 32} Here, appellant argues the trial court incorrectly applied
{¶ 33} In its decision in Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, the Supreme Court of Ohio considered the meaning of “parental rights and responsibilities” as it is used in
{¶ 34} Based on Fisher, the trial court concluded
{¶ 35} We do not agree with appellant‘s interpretation of Fisher and
{¶ 36} The “terms” of a shared parenting plan include ” ‘provisions covering all factors that are relevant to the care of the children, including, but not limited to, provisions covering factors such as physical living arrangements, child support obligations, provision for the children‘s medical or dental care, school placement, and the parent with which the children will be physically located during legal holidays, school holidays, and other days of special importance.’ ” Id. at ¶ 28, quoting
{¶ 37} While our court has never addressed the issue of whether a reduction in parenting time under a shared parenting plan requires a finding of a change in
{¶ 38} Other appellate districts, however, reach the opposite conclusion. For example, the Fourth District in Picciano v. Lowers, 4th Dist. No. 08CA38, 2009-Ohio-3780, concluded that while a reduction in the mother‘s parenting time may deprive the mother “of a substantial amount of time that she otherwise would have enjoyed with the child, the modification does not deprive her of her parental rights and responsibilities” because the trial court‘s decision did not “modify the child‘s residential parent or legal custodian.” Picciano at ¶ 24. Thus, the Fourth District determined the best interest standard in
{¶ 39} Similarly, the Third District has determined that if a court “is only seeking to change the method of implementation of a shared parenting plan” by decreasing the father‘s parenting time to approximately 36 percent of the total parenting time, then, under Fisher, the modification “does not change the designation of who is the residential parent,” and thus the standard articulated in
{¶ 40} While we recognize other appellate districts are split on this issue, we agree with the interpretation of Fisher adopted by the Third and Fourth Districts and find unpersuasive the Ninth District‘s interpretation of the holding of Fisher in determining when
{¶ 41} Appellant‘s fourth assignment of error is overruled.
VII. Fifth Assignment of Error – Best Interest of the Child
{¶ 42} In his fifth assignment of error, appellant argues the trial court failed to properly evaluate the best interest of the child.
{¶ 44} Appellant contends the trial court “failed to discover evidence in the record” that would have caused the trial court to deviate from the magistrate‘s findings. (Appellant‘s brief, at 47.) Appellant argues that because the trial court failed to consider his amended objections, the trial court prevented appellant from demonstrating that the magistrate precluded appellant from providing evidence at the hearing that was relevant to the best interest determination.
{¶ 45} In our discussion of appellant‘s third assignment of error, we determined the trial court did not err in not considering appellant‘s amended objections as those objections were untimely.
{¶ 46} The failure to file timely objections to a magistrate‘s decision under
{¶ 47} Appellant fails to point to any specific examples of the evidence he claims the trial court failed to evaluate, nor does appellant explain how the evidence properly before the trial court did not support the trial court‘s best interest determination.
VIII. Sixth Assignment of Error – Attorney Fees
{¶ 48} Appellant argues in his sixth assignment of error that the trial court erred in awarding attorney fees to appellee. Specifically, appellant alleges the attorney fees award was based on inaccurate information in the record.
{¶ 49} In a post-decree motion of proceeding arising out of an action for divorce, a court may award all or part of reasonable attorney fees and litigation expenses to either party if the court finds the award equitable.
{¶ 50} Appellant first asserts the trial court erroneously relied upon the magistrate‘s findings of fact as to appellee‘s income and the income of appellee‘s spouse. Appellant suggests a review of the transcript of proceedings before the magistrate would have revealed that mistake, especially when compared with appellee‘s financial affidavit of February 27, 2013. As we noted in our discussion of appellant‘s first assignment of error, appellant failed to timely file a transcript of the proceedings before the magistrate. Where an objecting party does not timely file a transcript of proceedings to support his objections, the trial court must accept the magistrate‘s findings of fact. Ross at ¶ 5. Further,
{¶ 51} Appellant next argues the trial court erred in accepting an unsupported claim from opposing counsel that appellee had paid over $100,000.00 in attorney fees.
{¶ 52} In considering the statement from appellee‘s counsel regarding the amount appellee had spent on fees, the trial court noted the child‘s age and that the child has “repeatedly and unwaveringly informed the [two] guardians, a psychologist, the Magistrate (and virtually anyone else who would listen) that she did not want to spend the amount of time with [appellant] that he requested.” (R. 544, Aug. 23, 2013 judgment entry, at 8.) The trial court further considered that appellant proceeded pro se and did not have to exhaust the same financial resources as appellee, as well as appellant‘s general conduct throughout the “highly contested litigation.” (R. 544, at 8.) A trial court does not abuse its discretion in considering both a party‘s litigation and non-litigation conduct in determining whether an award of attorney fees is equitable. Padgett at ¶ 15. Ultimately, the trial court concluded appellant‘s “behavior in repeatedly filing essentially the same motions, an unripe appeal and his extra-curricular activities in actively impugning [appellee‘s] attorney and the previous Guardian to parties not involved in this case warrants an award of attorney fees.” (R. 544, at 10.) The trial court ordered appellant pay appellee the sum of $650.00 per month for a period of 30 months. Given the record before us, the trial court did not abuse its discretion in granting appellee‘s motion for attorney fees.
{¶ 53} Appellant‘s sixth assignment of error is overruled.
IX. Seventh Assignment of Error – GAL
{¶ 54} In his seventh assignment of error, appellant argues the trial court abused its discretion when it overruled appellant‘s motion to remove the GAL. Further, appellant argues the trial court erred when it allowed admission of the GAL‘s report.
{¶ 55} A trial court may remove a GAL for failing to discharge his or her duties. In re A.L., 10th Dist. No. 07AP-638, 2008-Ohio-800, ¶ 23, citing
{¶ 56} Appellant filed a motion to dismiss Mary Beth Fisher as the GAL on February 14, 2012 based on his general dissatisfaction with the GAL‘s recommendations. The magistrate denied that motion and proceeded with the scheduled hearing. The GAL filed her second report and recommendation on February 22, 2012. On March 2, 2012, appellant filed a motion to set aside the magistrate‘s order denying his motion to remove the GAL. While the motion to set aside the magistrate‘s order was still pending, the magistrate reviewed the GAL‘s second report and recommendation as part of the basis for the magistrate‘s findings of fact.
{¶ 57} One of appellant‘s objections to the magistrate‘s decision was the magistrate‘s reliance on the GAL‘s report while the motion to set aside the magistrate‘s denial of appellant‘s motion for removal of the GAL was still pending. In its August 23, 2013 judgment entry, the trial court explained appellant‘s objection regarding the GAL had “become a legal nullity” because GAL Fisher was removed from the case after the magistrate‘s decision and subsequently replaced by GAL Stephen Daulton on November 15, 2012. (R. 544, at 3.) Because GAL Fisher had been removed from the case, the trial court correctly determined that appellant‘s motion to remove GAL Fisher had been rendered moot.
{¶ 58} Appellant nonetheless argues the magistrate should not have relied on GAL Fisher‘s report in reaching its decision as appellant still sought the GAL‘s removal from the case, and therefore it was error for the trial court to subsequently rely on the magistrate‘s decision. Appellant complains of various perceived deficiencies in GAL Fisher‘s methods of issuing her report and recommendation.
{¶ 59}
{¶ 61} Given the variety of factors the trial court considered in reaching its decision to affirm the magistrate‘s modification of the shared parenting plan, the trial court did not abuse its discretion in considering GAL Fisher‘s report and recommendation. As appellant concedes, the trial court does not indicate how much weight it placed on GAL Fisher‘s report. Further, even if it was error for the magistrate to consider GAL Fisher‘s report, GAL Daulton had replaced GAL Fisher before the trial court reached its decision and made the same recommendations as to parenting time as GAL Fisher. GAL Daulton conducted an independent, thorough investigation and considered the best interest factors as stated in
{¶ 62} We overrule appellant‘s seventh assignment of error.
X. Eighth Assignment of Error – 529 Plan Account
{¶ 63} Appellant argues in his eighth assignment of error that the trial court abused its discretion when it modified the provisions of the shared parenting plan related to the 529 Plan account maintained for the minor child‘s benefit.
{¶ 64} Where a shared parenting plan addresses a 529 Plan account, the 529 Plan account is a “term” of the shared parenting plan. Ramsey v. Ramsey, 9th Dist. No. 25810, 2012-Ohio-1715, ¶ 11. Pursuant to
{¶ 66} Appellant asserts, however, that the 529 Plan account was part of a larger financial settlement in the parties’ divorce. After a trial court issues a divorce decree, the trial court lacks jurisdiction to modify or amend the marital property division unless the decree expressly reserves jurisdiction or the parties expressly consent in writing to the modification. Cameron v. Cameron, 10th Dist. No. 12AP-349, 2012-Ohio-6258, ¶ 10, citing
{¶ 67} Here, the divorce decree ordered the division of the parties’ property, including real estate, automobiles, household goods, and various financial accounts. The divorce decree divided the parties’ property interests in investment accounts, retirement accounts, and checking and saving accounts. While the divorce decree makes no specific mention of the 529 Plan account, it does state each party shall retain any other “account of any kind now registered in his or her name.” (R. 70, Separation Agreement, at 4.)
{¶ 68} By contrast, the shared parenting agreement dedicates a separate section to “[The Minor Child]‘s 529 College Savings Plan and Payment of [The Minor Child]‘s College.” (R. 49, at 11.) The shared parenting plan describes the establishment of the 529 Plan account as a reflection of the parties’ desire “to help each of their children pay for a college education” and provides the parties “shall maintain all 529 accounts jointly, and
{¶ 69} The trial court properly construed the 529 Plan as a term of the shared parenting agreement subject to modification under the best interest of the child standard. Accordingly, the trial court did not abuse its discretion in modifying the terms of the shared parenting plan related to the management of the 529 Plan account.
{¶ 70} Appellant‘s eighth assignment of error is overruled.
XI. Ninth Assignment of Error –Due Process
{¶ 71} In his ninth and final assignment of error, appellant asserts the trial court engaged in a pattern of conduct that denied appellant his right to due process. Although the argument is not clear in his brief, appellant suggests the trial court has engaged in biased and prejudicial conduct.
{¶ 72} It is axiomatic that a ” ’ “fair trial in a fair tribunal is a basic requirement of due process,” ’ ” and “a biased decision maker is constitutionally unacceptable.” Bailey v. Beasley, 10th Dist. No. 09AP-682, 2010-Ohio-1146, ¶ 21, quoting Withrow v. Larkin, 421 U.S. 35, 46-47 (1975), quoting In re Murchison, 349 U.S. 133, 136 (1955). A bare allegation of bias does not state a claim of a violation of due process. Id.
{¶ 73} From what we can discern from his brief, appellant alleges the GAL had an illicit referral relationship with appellee‘s counsel thus rendering her biased against him. Appellant further alleges the trial court was biased against him because appellee‘s counsel contributed to the trial judge‘s election campaign. Appellant does not explain how either of these arguments creates a situation of constitutionally intolerable bias, nor does appellant point to any authority to support his position.
{¶ 74} As to the GAL, appellee‘s counsel vehemently denies any allegation of an improper relationship with GAL Fisher. Further, the trial court made clear to appellant that it is the court, and not opposing counsel, who appoints the GAL, so appellant‘s
{¶ 75} Moreover, an attorney‘s contribution to a judge‘s election campaign is not a per se showing of bias. See Bansal v. Mt. Carmel Health Sys., 10th Dist. No. 10AP-1207, 2011-Ohio-3827, ¶ 51, citing In re Disqualification of Burnside, 113 Ohio St.3d 1211, 2006-Ohio-7223, ¶ 8. Appellant fails to demonstrate how opposing counsel‘s contributions to the election campaign of the trial judge, without more, rises to the level of unconstitutional bias.
{¶ 76} The remainder of appellant‘s due process argument reflects a general dissatisfaction with the outcome of his case. However, mere disagreement with the result is not proof of bias or prejudice against the dissatisfied party. Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 96. Appellant has not demonstrated a violation of his right to due process, and we overrule his ninth assignment of error.
XII. Disposition
{¶ 77} Based on the foregoing reasons, the trial court did not err in granting appellee‘s motion to modify the shared parenting plan and awarding attorney fees to appellee. Having overruled appellant‘s nine assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
CONNOR and O‘GRADY, JJ., concur.