Reid v. ShafferReid v. Shaffer
DECISION
Rendered on November 25, 2020
On brief: Battisti & Ansbro, Eugene F. Battisti, Jr., and Mary C. Ansbro, for appellant. Argued: Mary C. Ansbro.
On brief: The Nigh Law Group, LLC, Joseph A. Nigh, and Courtney A. Zollars, for appellee. Argued: Courtney A. Zollars.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
NELSON, J.
{¶ 1} Plaintiff-appellant, Sarah A. Boyer Reid (nka Red), contends the trial court erred both in refusing to give her more time to file a transcript in support of her objections to a magistrate‘s decision and in not conducting a proper independent review of her objections to justify overruling them. She has not shown that the trial court abused its discretion in denying her request for more time to file the transcript: she filed her motion after the date the transcript was due and did not demonstrate that her neglect—including not requesting or paying the deposit on the transcript—was “excusable” in the circumstances here. Nor has she demonstrated that the trial court mishandled her objections, which mainly stated in very general terms that the magistrate‘s decision was “contrary to the facts” and to a statute and/or unspecified “caselaw.” July 3, 2019
{¶ 2} This appeal grows out of extensive litigation over child custody and support. The case began in October 2014 when defendant-appellee, Christopher B. Shaffer, filed in Fairfield County, Ohio a request for recognition of a foreign decree pertaining to a child custody order issued in North Carolina. The case was transferred to the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in January 2015. An initial round of motions concerning custody of the parties’ minor child, contempt, and fees were considered by a magistrate over a 21-day trial during 2015 and 2016. A magistrate issued a decision in 2017 terminating the parties’ joint custody order, designating Mr. Shaffer as sole residential parent and legal custodian of the minor child, issuing a comprehensive order relating to Ms. Boyer Reid‘s parenting time, and ordering Ms. Boyer Reid to pay child support, attorney fees, and litigation expenses. After granting Ms. Boyer Reid leave to file objections out of time, the trial court overruled those objections and adopted the magistrate‘s decision in January 2018.
{¶ 3} Another round of motions followed. Ms. Boyer Reid filed 18 motions, Mr. Shaffer filed eight motions, and the guardian ad litem (“GAL“) appointed for the minor child filed one motion. A magistrate considered the motions over a seven-day hearing in November 2018 and issued a decision on June 19, 2019 ordering that Mr. Shaffer maintain his custodial status, that Ms. Boyer Reid receive supervised parenting time and pay child support, and that each party pay one-half of the GAL fees incurred. The magistrate also held Ms. Boyer Reid in contempt for failure to pay attorney fees. On July 2, 2019, Mr. Shaffer filed a motion pursuant to
{¶ 4} The day after Mr. Shaffer filed his
First, the Magistrate‘s Decision regarding Plaintiff‘s Motion To Modify Parental Rights, filed April 5, 2018 is contrary to the facts. Additionally, the Magistrate‘s Decision regarding Plaintiff‘s Motion To Modify Parental Rights, filed April 5, 2018 is contrary to
O.R.C. 3109.04 and Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed to increase Plaintiff‘s parenting time and remove therequirement of supervision if not return the parties to shared parenting. Second, the Magistrate‘s Decision regarding Defendant‘s Motion To Modify Parental Rights, filed February 6, 2018 is contrary to the facts. Additionally, the Magistrate‘s Decision regarding Defendant‘s Motion To Modify Parental Rights, filed February 6, 2018 is contrary to
O.R.C. 3109.051 and Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed to increase Plaintiff‘s parenting time and remove the requirement of supervision.Third, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed March 31, 2016 and March 30, 2017 is contrary to the facts. Additionally, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed March 31, 2016 and March 30, 2017 is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed and Defendant should be found in Contempt of the North Carolina Decree and this Court‘s prior orders concerning telephone contact.
Fourth, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed August 29, 2016 is contrary to the facts pertaining to the additional missed telephone calls and viewing of a deceased. Additionally, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed August 29, 2016 is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed in part to find Defendant in Contempt. Plaintiff does not allege any error with the Magistrate find[ing] Defendant in Contempt pertaining to Defendant‘s failure to notify Plaintiff regarding the emergency room visit.
Fifth, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed January 19, 2017 is contrary to the facts pertaining to the certified mailers, the child‘s physical appearance, and telephone calls. Additionally, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed January 19, 2017 is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed in part to find Defendant in Contempt. Plaintiff does not allege any error with the Magistrate find[ing] Defendant in Contempt pertaining to Defendant‘s transfer of the minor child‘s primary care physician.
Sixth, the Magistrate‘s Decision regarding Defendant‘s Motions for Contempt, filed March 1, 2018 is contrary to the
facts pertaining to Plaintiffs ability to pay attorney fees when Defendant was not complying with his financial obligations to Plaintiff. Additionally, the Magistrate‘s Decision regarding Defendant‘s Motions for Contempt, filed March 1, 2018 is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed to find that Plaintiff is not in contempt. The penalty for Plaintiffs Contempt is not comparable to the penalties leveled against Defendant and there is no legal or factual basis for the discrepancy. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed [and] should be reduced to be commensurate with Defendant‘s penalty of $25.00 per incident. Seventh, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed October 17, 2017 is contrary to the facts. According to the Magistrate‘s Decision, Defendant blatantly stated that he would not be complying with the Court‘s Order. Additionally, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed October 17, 2017 is contrary to Ohio caselaw. That the Court is sympathetic to Defendant‘s reason for denying the visit does not excuse Defendant‘s failure to comply. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed to find Defendant in Contempt.
Eighth, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed February 14, 2018 is contrary to the facts pertaining to Branch I, II, and IV. According to the Magistrate‘s Decision, Defendant blatantly stated that he would not be complying with the Court‘s Order. Additionally, the Magistrate‘s Decision regarding Plaintiffs Motions for Contempt, filed February 14, 2018 is contrary to Ohio caselaw. That the Court is sympathetic to Defendant‘s reason for denying the visit does not excuse Defendant‘s failure to comply. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed in part to find Defendant in Contempt as set forth in Branch I, II and IV of Plaintiffs Motion.
Ninth, the Magistrate‘s Decision regarding Child Support is contrary to the facts. According to the Magistrate‘s Decision, neither party presented evidence regarding Defendant‘s self-employed income; nor, was evidence presented that demonstrated that Plaintiff was capable of working the number of hours the Court imputed to Plaintiff, that Plaintiff was voluntarily underemployed, and that Plaintiff could find employment at the rate specified previously earned.
Additionally, the Magistrate‘s Decision regarding Child Support is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be returned for further hearing pertaining to child support. Tenth, the Magistrate‘s Decision regarding Tax Exemptions is contrary to the facts. According to the Magistrate‘s Decision, neither party presented evidence regarding his/her net tax savings from claiming the minor child. The court also did not consider the significant tax savings that Defendant‘s status as a self-employed individual enabled him to claim. Additionally, the Magistrate‘s Decision regarding Child Support is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be reversed to designate that Plaintiff claim the tax exemption so long as she is substantially current on her child support.
Eleventh, the Magistrate‘s Decision regarding Mother‘s motion for reallocation of GAL fees, filed August 14, 2018 and Mother‘s motion to reallocate supervision fees, filed August 7, 2018, is contrary to the facts. Additionally, the Magistrate‘s Decision regarding Mother‘s motion for reallocation of GAL fees, filed August 14, 2018 and Mother‘s motion to reallocate supervision fees, filed August 7, 2018 is contrary to Ohio caselaw. Accordingly, the Magistrate‘s Decision, filed June 19, 2019, should be returned for further hearing pertaining to allocation of GAL and supervision fees consistent with the allegations of error outlined above. Wherefore, Plaintiff requests that this Court reverse the Magistrate‘s Decision, filed June 19, 2019, or remand it for further hearings as set forth above.
July 3, 2019 Objections at 1-4. Ms. Boyer Reid reserved “the right to supplement these assignments of error upon receipt and review of the transcript.” July 3, 2019 Objections at 5.
{¶ 5} Over a month later, Mr. Shaffer on August 6, 2019 filed a motion to dismiss the objections and for attorney fees asserting that, although Ms. Boyer Reid had filed her objections on time, she had failed to file a transcript or affidavit within 30 days of filing the objections, as required by
{¶ 7} The trial court held a hearing on August 13, 2019 to address Ms. Boyer Reid‘s objections and motion for leave to file an untimely transcript and Mr. Shaffer‘s motion to dismiss the objections. With a transcript of the hearing unavailable due to a problem with the recording system, Mr. Shaffer proposed, and the trial court issued pursuant to
{¶ 9} On October 8, 2019, the trial court filed its Decision and Judgment Entry addressing Ms. Boyer Reid‘s motion for leave to file transcript out of time, Ms. Boyer Reid‘s objections and Mr. Shaffer‘s motion to dismiss those objections, and the magistrate‘s June 19, 2019 decision. The trial court disagreed with Ms. Boyer Reid‘s argument that the
{¶ 10} Citing Juvenile Rule 40(D)(3)(b)(iii) and Local Rule 8 of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, the trial court then found that each of Ms. Boyer Reid‘s “general” objections to the magistrate‘s decision as “contrary to the facts” required support from a transcript or affidavit, or would be subject to dismissal. October 8, 2019 Decision and Judgment Entry at 10. The trial court added that further deficiencies plagued Ms. Boyer Reid‘s objections. For example, Ms. Boyer Reid never requested findings of fact and conclusions of law pursuant to
{¶ 11} On November 6, 2019, and having filed a 60(B) motion for relief from judgment five days earlier, Ms. Boyer Reid filed a notice of appeal from the October 8, 2019 trial court judgment. She asserts eight assignments of error:
[1.] The Trial Court committed reversible error when it denied Plaintiff-Appellant an Extension of Time to File the Transcript * * *[.]
[2.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections based upon a mischaracterization of the nature of the Objections[.]
[3.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections without conducting an independent review considering the arguments and objections of Plaintiff-Appellant[.]
[4.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections and adopted a Magistrate‘s Decision filed June 19, 2019 that the Court found deficient in findings of fact required by
R.C. 3109.04 [.][5.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections and adopted a Magistrate‘s Decision filed June 19, 2019 that the Court found deficient in findings of fact required by
R.C. 3109.051 [.][6.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections and adopted a Magistrate‘s Decision filed June 19, 2019 that ruled contrary to Ohio caselaw based upon the facts found by the Court concerning the conduct of the parties[.]
[7.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections and adopted a Magistrate‘s Decision filed June 19, 2019 that ruled contrary to Ohio caselaw based upon the lack of evidence found by the Court concerning the financial condition of the parties[.] [8.] The Trial Court committed reversible error when it Dismissed and Denied Plaintiff-Appellant‘s Objections and adopted a Magistrate‘s Decision filed June 19, 2019 that ruled contrary to Ohio caselaw based upon the lack of evidence found by the Court concerning the tax benefit of the parties[.]
Appellant‘s Brief at ix-x (with assignment designations changed from letters to numbers).
{¶ 12} Ms. Boyer Reid‘s assignments of error encompass three main issues: (1) whether the trial court erred in denying her an extension of time to file a transcript; (2) whether the trial court erred in handling her objections; and (3) whether the trial court erred in its review and adoption of the magistrate‘s decision. Ms. Boyer Reid has not demonstrated reversible error in these respects.
{¶ 13} As to the transcript, there is no dispute that Ms. Boyer Reid failed to comply with the timelines set forth in
{¶ 14} ” ’
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion * * * (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect * * *.
{¶ 15} “The determination of whether neglect is excusable or inexcusable must take into consideration all the surrounding facts and circumstances” of the case. Hillman v. Edwards, 10th Dist. No. 10AP-58, 2010-Ohio-3524, ¶ 10. This court has described inexcusable neglect under
{¶ 16} At the outset, although Ms. Boyer Reid points to “uncertainty” surrounding the magistrate‘s decision in light of Mr. Shaffer‘s
{¶ 17} Ms. Boyer Reid‘s contention that the trial court abused its discretion in otherwise refusing to find excusable neglect so as to extend the time limit is also without merit. Ms. Boyer Reid contends she was “not inactive” at least in the sense of not having “completely disregarded the judicial system.” Appellant‘s Brief at 12, Reply at 12. Her support of this argument, however, cites to information that she provided in her post-judgment
{¶ 18} The information before the trial court—that contained in her motion and the arguments made at the hearing by her counsel—is not enough to establish the trial court abused its discretion in denying leave to file a transcript in this case. Ms. Boyer Reid did not explain why her motion for an extension was filed after the 30-day deadline to submit the transcript. Her motion did not provide any evidence of her effort to secure the transcript, and she provided only her counsel‘s unsworn statements—about calling the wrong court reporter‘s office (with no sufficient follow-up), her client being unable to afford the transcript for another two weeks (there was no assertion of indigency), and the reporter not being able to prepare the transcript for another 45 days after receiving the full deposit. As noted by the trial court, this case involves lengthy litigation in which Ms. Boyer Reid already had been through the process of objecting to a magistrate‘s decision before and yet still did not appear to diligently pursue filing the transcript in support of her objections to the magistrate‘s decision.
{¶ 19} Ms. Boyer Reid‘s citations to cases that granted extensions do not command the same result here. Several of those cases shed no light on whether the trial court abused
{¶ 20} Considering appellant‘s delay in requesting both the transcript and an extension and then her failure to demonstrate excusable neglect to the trial court in the context of this case, we cannot say the trial court acted unreasonably, arbitrarily, or unconscionably in denying Ms. Boyer Reid an extension to file the transcript. Because Ms. Boyer Reid did not demonstrate the trial court abused its discretion in this regard, her first assignment of error is overruled.
{¶ 21} Lacking a transcript, Ms. Boyer Reid next argues that the trial court based its conclusion that the objections were not “well taken” on the “mischaracterization” of the objections as seeking simply to find the magistrate‘s decision “contrary to the facts.” Appellant‘s Brief at 14. Each objection in this case does expressly assert the magistrate‘s decision was decided “contrary to the facts,” July 3, 2019 Objections at 1-4. The additional bald (or at least balding) assertions within each objection, such as the magistrate‘s decision being contrary to case law or a statute, could arguably be premised on those allegedly wrong findings of fact. The objections are general, in violation of
{¶ 22} Ms. Boyer Reid next argues that, regardless of not having a transcript before it, the trial court committed reversible error by dismissing and denying her objections “without conducting an independent review considering the arguments and objections of plaintiff.” Appellant‘s Brief at 16, 18. The first part of this argument asserts that the trial court did not permit the parties to address the substance of the objections. This argument is not supported by the record: the
{¶ 23} Ms. Boyer Reid next argues the trial court “created a requirement that [she] request [f]indings of [f]act and [c]onclusions of [l]aw before being able to object to the facts contained in the [m]agistrate‘s [d]ecision,” which she asserts is contrary to
{¶ 24} She additionally alludes to the trial court adopting the magistrate‘s “presumptive and prejudicial conclusions totally unsupported by the law,” contrary to its duty to independently review the magistrate‘s legal conclusions as set forth in
{¶ 25} Moreover, we have already found the substance of the objections were tied to factual findings in need of a transcript to review: appellate courts, including this one, have found that a trial court acts within its discretion in overruling or dismissing the objections. Pallone v. Pallone, 10th Dist. No. 15AP-779, 2016-Ohio-7066, ¶ 16 (stating a trial court is justified in overruling an objection that is unsupported by a transcript); White v. Davia, 7th Dist. No. 11HA4, 2012-Ohio-2820, ¶ 14 (finding trial court did not abuse its discretion in overruling objections based on the failure to file a transcript of the magistrate‘s hearing where the transcript was necessary to review the factual basis of the magistrate‘s decision). See also Aicher v. Aicher, 10th Dist. No. 08AP-859, 2009-Ohio-1268, ¶ 14 (“When the actions or inactions of counsel have made it impossible for a trial court judge to address the merits of objections to a magistrate‘s decision, we cannot say that a judge abuses her discretion by dismissing the objections for failure to prosecute“); Huffer v. Huffer, 10th Dist. No. 12AP-883, 2013-Ohio-1575, ¶ 10 (finding the trial court‘s decision to dismiss appellant‘s objections to be reasonable where the appellant did not file a transcript necessary to review the objection and did not argue plain error); Local Juv.R. 8(1) (“[f]ailure to file a transcript when one is required by [Local Rule 8(1)] is a basis for dismissal of the Objections.“). We overrule the third assignment of error.
{¶ 26} Ms. Boyer Reid‘s fourth and fifth assignments assert reversible error premised on the trial court not being able to properly review the objections and magistrate‘s decision after having found the magistrate‘s decision to be “deficient in findings of fact.”
{¶ 27} No party requested further findings of fact or conclusions of law in this case, and the authorities cited by Ms. Boyer Reid,
{¶ 28} Ms. Boyer Reid then cites State ex rel. Thompson v. Spon, 83 Ohio St.3d 551 (1998), to argue that ”
here, we cannot presume the regularity of the proceedings below because [the appellant] requested findings of fact and conclusions of law. Compare Mann v. Mann, 4th Dist. No. 09CA38, 2011-Ohio-1646, ¶ 11 (“When a party fails to request findings of fact and conclusions of law, we must presume the regularity of the trial court proceedings.“).
Nolan at ¶ 42. Ms. Boyer Reid‘s fourth and fifth assignments of error are overruled.
{¶ 29} The remainder of Ms. Boyer Reid‘s objections assert error in the trial court‘s adoption of the magistrate‘s legal conclusions in three specific respects. She asserts the trial court ruled contrary to Ohio caselaw based upon: “the facts found by the [c]ourt concerning the conduct of the parties“; “the lack of evidence found by the Court concerning the financial condition of the parties“; and “the lack of evidence found by the Court concerning the tax benefit of the parties[.]” Appellant‘s Brief at 22-31. “Without a transcript of the hearing a trial court is required to accept all the magistrate‘s findings of fact as true and only review the legal conclusions drawn from those facts.” Bahgat at ¶ 20-21, citing JP Morgan Chase Bank, N.A. at ¶ 14, fn. 1; Bayview Loan Servicing at ¶ 12. “Generally, the decision to adopt, reject, or modify a magistrate‘s decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion.” Barlow v. Barlow, 9th Dist. No. 08CA0055, 2009-Ohio-3788, ¶ 5.
{¶ 30} In this case, the trial court adopted the magistrate‘s decision in its entirety “[a]fter an independent review of the entire court file, Magistrate‘s Decision, evidence, pleading, and available record[.]” October 8, 2019 Decision and Judgment Entry at 12. Ms. Boyer Reid‘s challenges to the magistrate‘s legal conclusions here do not demonstrate the trial court abused its discretion in doing so.
{¶ 32} Ms. Boyer Reid next asserts the trial court committed reversible error in adopting the magistrate‘s decision since the magistrate ruled contrary to Ohio caselaw based upon “the lack of evidence found by the Court concerning the financial condition of the parties.” Appellant‘s Brief at 27. Ms. Boyer Reid specifically contends the magistrate modified Ms. Boyer Reid‘s child support obligation after the magistrate “did not find any error with the calculation of the Franklin County Child Support Enforcement Agency‘s calculation,” Appellant‘s Brief at 28, but this contention is against the implication of the record: the magistrate stated that “[p]ursuant to
{¶ 33} Finally, Ms. Boyer Reid contends the trial court ruled contrary to Ohio caselaw based upon “the lack of evidence found by the Court concerning the tax benefit of the parties,” but again cites no case law that demonstrates a legal error to support reversal. Appellant‘s Brief at 29. Appellant misstates the holding in Singer v. Dickerson, 63 Ohio St.3d 408, 415 (1992): it does not hold that tax exemption “should” be awarded to a non-custodial parent under the best interest of the child when there is a net tax savings to the parent, but rather holds that “allocation of the dependency exemption provided by Section 152(e), Title 26, U.S. Code may be awarded to the noncustodial parent when that allocation would produce a net tax savings for the parents, thereby furthering the best interest of the child.” Appellant‘s Brief at 29; Singer at 415. Regardless, Singer is immaterial because “no party presented evidence of net tax savings, that either party was eligible for the earned income tax credit, or, if eligible, what financial benefit would be had.” June 19, 2019 Magistrate‘s Decision at 24. This statement by the magistrate did not, as Ms. Boyer Reid suggests, amount to a finding that “there was insufficient evidence to determine pursuant to
{¶ 35} Having overruled all eight assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, adopting the magistrate‘s decision.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.