KERI B. REDMOND fka WADE now PATON v. ADAM R. WADE
Case No. 16CA25
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
7-31-17
[Cite as Redmond v. Wade, 2017-Ohio-7192.]
ABELE, J.
CIVIL CASE FROM COMMON PLEAS COURT
Keri Redmond Paton, Louisville, Kentucky, pro se appellant.
Mark K. McCown, Ironton, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
ABELE, J.
{1} This is аn appeal from a Lawrence County Common Pleas Court judgment that modified a parenting time provision contained in a prior parenting decree. Keri B. Redmond fka Wade now Paton, respondent below and appellant herein, raises the following assignments of error:1
FIRST ASSIGNMENT OF ERROR:
“JUDGE COOPER FAILED TO PERFORM AND [SIC] INDEPENDENT REVIEW OF THE MAGISTRATE‘S DECISION, WHICH IS AN ABUSE OF DISCRETION. * * * *”
“THE TRIAL COURT ERRORED [SIC] IN A FINDING THAT DECREASING A PARENTS [SIC] VISITATION IS IN THE CHILD‘S BEST INTEREST AND ABUSE OF DISCRETION, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE [SIC]. * * * *”
THIRD ASSIGNMENT OF ERROR:
“THE LAWRENCE COUNTY COURT CONTINUES TO SHOW BIAS AGAINST THE MOTHER AND FOR THE FATHER WITHOUT ANY MERIT IN REGARDS TO ITS ORDERS, WHICH [SIC] IS A VIOLATION OF THE MOTHER‘S RIGHT TO THE DUE PROCESS CLAUSE * * * *”
FOURTH ASSIGNMENT OF ERROR:
“THE COURTS OF LAWRENCE COUNTY, [SIC] CONTINUE TO GO AGAINST THE OHIO STATE LAW AND FAVOR THE FATHER OVER THE MOTHER. * * * *”
FIFTH ASSIGNMENT OF ERROR:
“BOTH MAGISTRATE MCWHORTER AND JUDGE COOPER FAILED TO FOLLOW RULE 2.2 IMPARTIALITY AND FAIRNESS A JUDGE SHALL UPHOLD AND APPLY THE LAW, AND SHALL PERFORM ALL DUTIES OF JUDICIAL OFFICE FAIRLY AND IMPARTIALLY [SIC]. RULE 2.3 BIAS, PREJUDICE, AND HARASSMENT. THIS APPELLANT REQUESTS THAT THE COURT OF APPEALS RECOGNIZE THE LAWRENCE COUNTY TRIAL COURT IS UNABLE TO PROCEED IN COURT HEARINGS WITH THIS MOTHER AND NOT BE BIAS [SIC] AGAINST HER.”
{2} On May 3, 2016, the trial court entered a judgment that (1) terminated the parties’ prior shared parenting decree, (2) designated appellee the child‘s residential parent, and (3) allocated parenting time to appellant. The court included the following provision regarding appellant‘s parenting time:
During [appellant]‘s visits to the Lawrence County, Ohio area, the Court Ordered
Visitation will still be in effect and in addition thereto, she is granted additional visitation of two to three hours per visit so long as the child is not involved in a prior activity for the same period in [sic] time.
{3} On June 23, 2016, appellee filed a motion to modify аppellant‘s additional Lawrence County parenting time and to order the parties to exchange the child at the Lawrence County Sheriff‘s office. He alleged that appellant has abused the additional visitation by frequently visiting Lawrence County on her non-weekend dates and attempting to disrupt appellee‘s activities. Appellee also asserted that appellant refused to return the child in a timely fashion and manner. Appellant further argued that exchanging the child at the Lawrence County Sheriff‘s office would alleviate issues that arise during the parties’ exchange.
{4} On August 2, 2016, the magistrate modified the prior parenting decree to provide that appellant‘s additional Lawrence County parenting time “may occur a maximum of one time per month.” The magistrate additionally ordered that the parties exchange the child at the Lawrence County Sheriff‘s office. The magistrate‘s decision further indicates that the court held a hearing concerning appellee‘s June 23, 2016 motion, but the record does not include a transcript of the hearing.
{5} On August 15, 2016, appellant objected to the magistrate‘s decision that limited her additional Lawrence County parenting time and that ordered the parties to exchange the child at the Lawrence County Sheriff‘s office. Appellant asserted that it is not in the child‘s best interest to decrease her parenting time. She further argued that the evidence fails to show that exchanging the child at the Lawrence County Sheriff‘s office is necessary.
{6} On August 17, 2016, the magistrate filed a “nunc pro tunc” decision. The decision indicates that the court held a hearing on July 20, 2016, and that the parties presented testimony
{7} On September 12, 2016, the trial court overruled appellant‘s objections. In doing so, the court noted that appellant did not submit a transcript. The court thus determined that it “must find that the Magistrаte made an accurate factual finding concerning both the issue of adjusting the additional visitation of the mother and as to the location for exchange of the child for visitation.” The court therefore ordered that appellant‘s “additional local parenting time” be “limited to one time per month, with the mother giving sufficient advanced notice of her request for the additional local parenting time” and that the parties shall exсhange the child at the Lawrence County Sheriff‘s Office. This appeal followed.
I
{8} Initially, we note that the decision involved in this appeal occurred while an appeal was pending from the May 3, 2016 decision that designated appellee the child‘s residential parent and that allocated parenting time to appellant. It is well-established that “ ‘once an appeal is perfected, the trial court is divested of jurisdiction оver matters that are inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment.’ ” State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214, ¶ 17, quoting State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8; State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 12. Stated
{9} In cases involving parental rights and responsibilities, however,
A motion to modify, pending appeal, either a decree allocating parental rights and responsibilities for the care of children, a spousal or other support order, shall be made to the trial court in the first instance, whether made before or after a notiсe of appeal is filed. The trial court may grant relief upon terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party and in the best interests of the children involved.
Civ.R. 62(B) does not apply to orders allocating parental rights and responsibilities for the care of children or a spousal or other support order. An order entered upon motion under this rule may be vacated or modified by the appellate court. The appellate court has authority to enter like orders pending appeal, but an application to the appellate court for relief shall disclose what has occurred in the trial court regarding the relief.
{10} “
The rule еmpowers a trial court to modify judgments regarding parental rights that are pending appeal, subject to an appropriate bond to protect the rights of an adverse party. The rule provides a straightforward mechanism for protecting the best interest of a child during the appellate process.
Id.
II
{12} In her first assignment of error, appellant asserts that the trial court failed to conduct an independent review of the magistrate‘s decision.
{13}
{14}
{15} Furthermore, the absence of a transcript or affidavit of evidence limits appellate review of a trial court‘s decision adopting a magistrate‘s decision.
One of the predicates for appealing from a factual finding in cases initially heard by a magistrate is that the trial judge must have had an adequate opportunity to conduct a full review of the factual finding. That full review is not possible unless the appellant provided the trial court with an adequate description of the evidence presented to the magistrate--either through a transcript or, if a transcript is unavailable, an affidavit describing that evidence.
{16} Additionally, when a party objecting to a magistrate‘s decision does not provide the trial court with a transcript of the magistrate‘s proceedings, appellate review “is limited to whether the trial court abused its discretion in adopting the [magistrate]‘s report.” State ex rel. Duncan v.Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995). “In other wоrds, an appeal under these circumstances can be reviewed by the appellate court to determine whether the trial court‘s application of the law to its factual findings constituted an abuse of discretion.” Id.; accord Liming v. Damos, 4th Dist. Athens No. 08CA34, 2009–Ohio–6490, ¶ 17 (stating that when a party does not file a transcript of evidence or an affidavit with the trial court, appellate review is limited to determining whether the trial court abused its discretion when applying the law to the faсts). Therefore, when an appellant fails to present a trial court with a transcript of the proceedings conducted before a magistrate, or an affidavit that describes the evidence, appellate review is limited to the trial court‘s conclusions of law. See
[w]hen portions of the transcript necessary for resolution of assigned errors are omitted from the record and the appellant has provided no acceptable alternative to a transcript, “the reviewing court has nothing to pass upon and thus, as to those assigned errors, the сourt has no choice but to presume the validity of the lower court‘s proceedings, and affirm.”
Henley v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 16AP-168, 2016-Ohio-5593, 2016 WL 4586090, ¶ 7, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980); e.g., Lowery v. Bradley, 4th Dist. Ross No. 16CA3532, 2017-Ohio-1273, ¶ 8.
{17} In the case sub judice, appellant did not submit a transcript of the proceedings heard before the magistrate or an affidavit describing the evidence. Because she did not object to the magistrate‘s decision in accordance with
{18} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
III
{19} In her second assignment of error, appellant asserts that the trial court abused its discretion by modifying the parenting time provision and that its decision is against the manifest weight of the evidence. She contends that “[t]here was no evidence presented at the trial that decreasing the mother‘s visitation time was in [the child]‘s best interest.”
{20} Appellant‘s failure to submit a transcript or an affidavit describing the evidence to the trial court to review with her objections precludes us from reviewing her second assignment of error. Without a transcript or affidavit describing the evidence, we simply have no basis to determine that the trial court abused its discretion or that its decision is against the manifest weight of the evidence. Knapp, 61 Ohio St.2d at 199; Henley at ¶ 7.
{21} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error.
IV
{22} In her third, fourth, and fifth assignments of error, appellant argues that the trial
{23} “Judicial bias is ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by law and the facts.’ ” In re Adoption of C.M.H., 4th Dist. Hocking No. 07CA23, 2008-Ohio-1694, ¶ 34, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus; accord Hirzel v. Ooten, 4th Dist. Meigs Nos. 06CA10, 07CA13, 2008-Ohio-7006, ¶ 62.
{24} Although this Court cannot void a judgment based upon judicial bias, we “can review properly raised challenges to a magistrate‘s impartiality.” Lingenfelter v. Lingenfelter, 9th Dist. Wayne No. 15AP-0062, 2017-Ohio-235, ¶ 10.
{25} In the case sub judice, appellant did not file a motion under
{26} However, appellate courts have discretion to consider forfeited errors under the
{27} The plain error doctrine is not, however, readily invoked in civil cases. Instead, an appellate court “must proceed with the utmost caution” when applying the plain error doctrine in civil cases. Goldfuss, 79 Ohio St.3d at 121. The Ohio Supreme Court has set a “very high
{28} In the case at bar, the lack of a transcript renders us unable to evaluate whether the trial court plainly erred by failing to disqualify the magistrate. Once again, the record does not contain a transcript of the proceedings before the magistrate, or any other evidence to show that the magistrate displayed any bias. Consequently, we have no basis to find that the trial court should have disqualified the magistrate.
{29} Accordingly, based upon the foregoing reasons, we overrule appellant‘s third, fourth, and fifth assignments of error and affirm the trial court‘s judgment.
Harsha, J., concurring:
{30} I concur in the judgment overruling Paton‘s assignments of error but write separately because I am not persuaded that
{31} Although made during the appeal of the earlier modification order, the second judgment modifying the parties’ parenting time simply was not intended to be effective only during the pendency of the appeal. Therefore,
{32} It is true that in general, “ ‘once an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court‘s jurisdiction to reverse, modify, or affirm the judgment.’ ” State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13, quoting State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8. Here the trial court modified the parenting time provision of an order that was on appeal. A review of the timeline for the orders on appeal is helpful. The trial court judgment of May 3, 2016 terminated a shared parenting plan, designated Adam Wade the residential parent, and allotted Ms. Patton parenting time. Ms. Patton appealed that judgment on May 24, 2016, see
{33} The general rule prohibiting trial courts from proceeding once an appeal is perfected is limited to matters “inconsistent” with the appellate court‘s jurisdiction to reverse, modify, or affirm the prior judgment. I am not persuaded that a court acts inconsistently with our jurisdiction when it modifies an order already under our review, if the new order is based on actions and circumstances that occur after the original order was appealed.
{34} Under these limited circumstances, the trial court has continuing jurisdiction under
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment & Opinion
Harsha, J.: Concurs with Concurring Opinion
For the Court
BY:
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this dоcument constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.