Ramsey v. RamseyRamsey v. Ramsey
Case Information
*1
[Cite as
Ramsey v. Ramsey
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Kristin June Ramsey, :
Plaintiff-Appellee, : No. 13AP-840 (C.P.C. No. 08 DR 3858) v. :
(REGULAR CALENDAR) James Ray Ramsey, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 6, 2014
Friedman & Mirman Co., LPA , Scott N. Friedman and Elizabeth A. Johnson , for appellee.
James R. Ramsey , pro se.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
LUPER SCHUSTER, J.
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 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.
{¶ 3} On April 22, 2011, appellee filed a post-decree motion to modify the shared parenting plan. The trial court appointed a guardian ad litem ("GAL") for the minor child. On February 14, 2012, appellant filed a motion for a continuance in conjunction with a motion requesting the removal of the GAL and a motion for psychological evaluations of the parties. Following a February 17, 2012 hearing, the magistrate denied and dismissed all three of appellant's motions in an order dated February 22, 2012.
{¶ 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. 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. 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
decision after the expiration of the 14-day time limit in
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. 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. 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
II. Assignments of Error 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
[5.] The trial court failed to properly apply the best interest test required byR.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 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. 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,
position of an appellate court.
Sweeney
at ¶ 14, citing
Wolff v. Kreiger
, 48 Ohio App.2d
153, 155-56 (8th Dist.1976). Instead, the trial court must conduct a de novo review of the
facts and conclusions in the magistrate's decision.
Id
., citing
DeSantis v. Soller
, 70 Ohio
App.3d 226, 232 (10th Dist.1990). As the ultimate finder of fact, the trial court must
make its own factual determinations through an independent analysis and should not
adopt the magistrate's findings unless the trial court fully agrees with them.
Id
., citing
DeSantis
at 232. It is the trial court's obligation to determine whether the magistrate
properly determined the facts and applied the appropriate law. If the trial court
determines, in its judgment, the magistrate has failed to do so, the trial court must
substitute its judgment for that of the magistrate. ., citing
Coronet Ins. Co. v. Richards
,
magistrate's decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by
transcript of proceedings in support of his objections under
A. Untimely Objections
A court is not required to address untimely objections.
Tomety v. Dynamic
Auto Serv.
, 10th Dist. No. 09AP-982,
B. Untimely Transcript 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. 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,
IV. Second Assignment of Error – Ex Parte Communications
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 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
{¶ 27}
As we have already explained in our discussion of appellant's first
assignment of error, the trial court is not required to address untimely objections to a
magistrate's decision.
Tomety
at ¶ 13. Although the trial court did not explicitly state it
was refusing to consider appellant's amended objections as untimely,
VI. Fourth Assignment of Error - Trial Court's Application of
v. Hanna
,
responsibilities. Under
the Supreme Court of Ohio considered the meaning of "parental rights and
responsibilities" as it is used in
controls when the court modifies the designation of residential parent and legal
*10
custodian. Appellant contends that while the designation of residential parent and legal
custodian falls under
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.' " . at ¶ 28, quoting
parenting time under a shared parenting plan requires a finding of a change in
*11
circumstances, appellant relies on the Ninth District's decision in
Gunderman v.
Gunderman
, 9th Dist. No. 08CA0067-M,
{¶ 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
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
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
VII. Fifth Assignment of Error – Best Interest of the Child In his fifth assignment of error, appellant argues the trial court failed to properly evaluate the best interest of the child.
{¶ 43}
In determining the best interest of the child, the trial court considers
multiple factors in
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. 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.
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. *13 Appellant's unparticularized suggestion that other evidence may have supported a different outcome does not create an exceptional circumstance rising to the level of plain error. Thus, we overrule appellant's fifth assignment of error.
VIII. Sixth Assignment of Error – Attorney Fees 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. 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.
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,
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. Appellant's sixth assignment of error is overruled.
IX. Seventh Assignment of Error – GAL 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. A trial court may remove a GAL for failing to discharge his or her duties. In
re A.L.
, 10th Dist. No. 07AP-638,
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. 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. 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.
parenting is in the best interest of a child, "shall consider all relevant factors" including
"[t]he recommendation of the guardian ad litem of the child."
{¶ 60} In addition to the report and recommendation of GAL Fisher, the trial court also considered the parents' wishes, the child's wishes expressed in her in camera interview, and noted the child's age, explaining to appellant that parenting a then-sixteen- year-old child presents a much different set of circumstances than parenting a preschool- aged child. Based on all of these factors, not just on the recommendation of the GAL, the trial court concluded the modification to the shared parenting plan was in the child's best interest. 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
X. Eighth Assignment of Error – 529 Plan Account 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. 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,
differing views of when a disbursement from the 529 Plan account was permissible. The evidence indicated appellant had previously refused to approve disbursements for another child. Additionally, the parties agreed the funds for the 529 Plan were the result of a gift from appellee's family. Appellee asked the court to modify the shared parenting plan to make appellee the sole owner of the minor child's 529 Plan account so that appellee alone could mange the plan until the child turns 18, at which time appellee intends to turn control of the 529 Plan account over to the child. It is from this testimony that the magistrate approved the modification of the 529 Plan account and the trial court subsequently adopted that modification as its own. Appellant does not indicate how this decision is an abuse of the trial court's discretion other than to indicate he disagrees with the result. 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,
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.) 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 *18 neither shall disburse money from those accounts to the children, or any third party, without the written permission of the other parent." (R. 49, at 11.) Based on the plain language of these two documents, the accounts discussed in the divorce decree contemplate personal financial accounts while the 529 Plan in the shared parenting agreement specifically contemplates education expenses for the minor child. Thus, we do not agree with appellant that the 529 Plan was part of the division of property in the divorce decree.
{¶ 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 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. 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,
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. 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 *19 complaints that appellee secured a GAL that would produce favorable results for appellee were meritless. Additionally, as we explained in our discussion of appellant's seventh assignment of error, GAL Fisher was eventually removed from the case and replaced with a GAL that appellant never alleged showed any signs of bias against him. 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,
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,
XII. Disposition 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.