[Cite as Bennett v. Bennett, 2012-Ohio-501.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
: GEORGE BENNETT Plaintiff-Appellant : C.A. CASE NO. 11 CA 52
vs. : T.C. CASE NO. 09-DR-1176
: (Civil Appeal from JILL M. BENNETT Common Pleas Court, Defendant-Appellee : Domestic Relations Division)
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of February, 2012.
Douglas W. Geyer, Atty. Reg. No. 0022738, 451 Upper Valley Pike, Springfield, OH 45504 Attorney for Plaintiff-Appellant
Jon Paul Rion, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P.O. Box 1262, Dayton, OH 45402 Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} This is an appeal from an “Entry” of the domestic
relations division of the court of common pleas filed in a divorce
action that overruled objections to a magistrate’s decision
granting a decree of divorce and approved and adopted the decision
as the court’s final order in the action. We find that the decision 2
the court entered does not comply with Civ.R. 54(A), and is
therefore not an order, judgment, or decree subject to appellate
review. The appeal will be dismissed and the case remanded for
further proceedings.
{¶ 2} George and Jill Bennett were married on July 10, 1999.
Two children were born of the marriage. George 1 commenced an
action on a complaint for divorce on December 3, 2009. (Dkt. 1.)
Jill filed an answer and counterclaim for divorce on December
4, 2009. (Dkt. 11.) The matter was referred to a magistrate for
hearings and a decision on the claims for relief pleaded in the
action.
{¶ 3} Following hearings, the magistrate on January 5, 2011
filed a comprehensive, fifty-one page decision in the form of a
decree of divorce, which the court made its interim order. (Dkt.
64.) Both parties filed objections to the decision. George filed
two objections concerning matters which are likewise the subject
of this appeal.
{¶ 4} George objected to the magistrate’s designation of Jill
as the residential parent and legal custodian of the parties’ two
minor children, instead of ordering shared parenting as George
had requested. George also objected to the magistrate’s
1 For clarity and convenience, the parties are identified by their first names. 3
determination that an award for personal injuries George was paid
is marital property, and an order dividing the proceeds of that
property with Jill accordingly.
{¶ 5} On June 28, 2011, the domestic relations court
journalized an “Entry” addressing the magistrate’s decision and
the parties’ objections. (Dkt. 82.) Concerning each objection,
and without further elaboration, the court stated that, following
an independent review, it disagreed with the contentions the
objections involved and found the objections not well-taken, and
therefore that the objections “shall be and herewith are
OVERRULED.” The court’s order concludes:
{¶ 6} “IT IS FURTHER ORDERED that the Magistrate’s Decision
filed in the within matter on January 5, 2011 is approved by this
Court in its entirety and adopted by this Court as its Final
Appealable Order.
{¶ 7} “IT IS FURTHER ORDERED that all costs associated with
this Objection shall be assessed to both parties equally.
{¶ 8} “THIS IS A FINAL APPEALABLE ORDER.
“___________/s/___________
“Thomas J. Capper, Judge”
{¶ 9} On July 18, 2011, George filed a notice of appeal from
the Entry of June 28, 2011. George’s brief on appeal presents
the following two assignments of error: 4
FIRST ASSIGNMENT OF ERROR
{¶ 10} “The order designating the Defendant/Appellee, JILL M.
BENNETT, as the residential parent for the two minor children,
adopted by the trial court, is based in an erroneous conclusion
drawn by the magistrate which is not supported by the evidence
presented during the various hearings held herein when the adoption
of either of the shared parenting plans submitted by
Plaintiff/Appellant, GEORGE F. BENNETT, JR. is, in fact, supported
by the evidence presented during the various hearings and is truly
in the best interest of the minor children.”
SECOND ASSIGNMENT OF ERROR
{¶ 11} “The trial court abused its discretion by adopting the
magistrate’s decision finding against the manifest weight of the
evidence that Plaintiff/Appellant, GEORGE BENNETT JR’s USAA
personal injury settlement from an accident, which occurred while
on duty as an officer of the Clark County Sheriff were marital
property subject to division during the divorce.”
{¶ 12} The two errors George assigns for our review present
the same contentions that the court rejected when it overruled
George’s objection to the magistrate’s decision in those same
respects.
{¶ 13} The appellate jurisdiction of the courts of appeals to
review final judgments and orders of lower courts of record is 5
as may be provided by legislative enactment. Section 3(B)(2),
Article IV, Ohio Constitution. That jurisdiction is limited to
final orders, judgments, and decrees. Id.; R.C. 2505.03(A).
Final orders and judgments are defined by R.C. 2505.02.
{¶ 14} “A final appealable order has three essential
characteristics: it is final under Civil Rule 54(B); appealable
under RC Ch. 2505; and meets the definition of an order, judgment,
or decree. Each of these characteristics is a separate
requirement, the absence of any of which will deprive the court
of jurisdiction to hear the appeal.” Sowald & Morganstern, Ohio
Practice Domestic Relations Law (2009) 725, Section 32:1 (emphasis
in original).
{¶ 15} A judgment and decree of divorce is final under Civ.R.
54(B) when it determines every claim presented by the parties to
an action. It is then appealable under R.C. 2505.02(B)(1) because
the judgment and decree “affects a substantial right in an action
that in effect determines the action and prevents a judgment.”
It meets the definition of a judgment, order, or decree when it
satisfies the definitional provisions of Civ.R. 54(A), which
states:
{¶ 16} “Definition; form. ‘Judgment’ as used in these rules
includes a decree and any order from which an appeal lies as provided
in section 2505.02 of the Revised Code. A judgment shall not 6
contain a recital of pleadings, the magistrate’s decision in a
referred matter, or the record of prior proceedings.” (Emphasis
supplied.)
{¶ 17} When no objections to a magistrate’s decision are filed,
the court may adopt the decision as the court’s order “unless it
determines that there is an error of law or other defect evident
on the face of the magistrate’s decision.” Civ.R. 53(D)(4)(c).
In that instance the court performs no independent review of the
merits of the magistrate’s decision, because the lack of objections
waives the parties’ right to such a review, as well as the right
to assign error on appeal concerning the court’s adoption of
findings of fact or conclusions of law in the magistrate’s decision.
Civ.R. 53(D)(3)(b)(iv).
{¶ 18} When timely objections are instead filed, “the court
shall undertake an independent review as to the objected matters
to ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law.” Civ.R.
54(D)(4)(d). That review is the equivalent of a de novo
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[Cite as Bennett v. Bennett, 2012-Ohio-501.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
: GEORGE BENNETT Plaintiff-Appellant : C.A. CASE NO. 11 CA 52
vs. : T.C. CASE NO. 09-DR-1176
: (Civil Appeal from JILL M. BENNETT Common Pleas Court, Defendant-Appellee : Domestic Relations Division)
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of February, 2012.
Douglas W. Geyer, Atty. Reg. No. 0022738, 451 Upper Valley Pike, Springfield, OH 45504 Attorney for Plaintiff-Appellant
Jon Paul Rion, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P.O. Box 1262, Dayton, OH 45402 Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} This is an appeal from an “Entry” of the domestic
relations division of the court of common pleas filed in a divorce
action that overruled objections to a magistrate’s decision
granting a decree of divorce and approved and adopted the decision
as the court’s final order in the action. We find that the decision 2
the court entered does not comply with Civ.R. 54(A), and is
therefore not an order, judgment, or decree subject to appellate
review. The appeal will be dismissed and the case remanded for
further proceedings.
{¶ 2} George and Jill Bennett were married on July 10, 1999.
Two children were born of the marriage. George 1 commenced an
action on a complaint for divorce on December 3, 2009. (Dkt. 1.)
Jill filed an answer and counterclaim for divorce on December
4, 2009. (Dkt. 11.) The matter was referred to a magistrate for
hearings and a decision on the claims for relief pleaded in the
action.
{¶ 3} Following hearings, the magistrate on January 5, 2011
filed a comprehensive, fifty-one page decision in the form of a
decree of divorce, which the court made its interim order. (Dkt.
64.) Both parties filed objections to the decision. George filed
two objections concerning matters which are likewise the subject
of this appeal.
{¶ 4} George objected to the magistrate’s designation of Jill
as the residential parent and legal custodian of the parties’ two
minor children, instead of ordering shared parenting as George
had requested. George also objected to the magistrate’s
1 For clarity and convenience, the parties are identified by their first names. 3
determination that an award for personal injuries George was paid
is marital property, and an order dividing the proceeds of that
property with Jill accordingly.
{¶ 5} On June 28, 2011, the domestic relations court
journalized an “Entry” addressing the magistrate’s decision and
the parties’ objections. (Dkt. 82.) Concerning each objection,
and without further elaboration, the court stated that, following
an independent review, it disagreed with the contentions the
objections involved and found the objections not well-taken, and
therefore that the objections “shall be and herewith are
OVERRULED.” The court’s order concludes:
{¶ 6} “IT IS FURTHER ORDERED that the Magistrate’s Decision
filed in the within matter on January 5, 2011 is approved by this
Court in its entirety and adopted by this Court as its Final
Appealable Order.
{¶ 7} “IT IS FURTHER ORDERED that all costs associated with
this Objection shall be assessed to both parties equally.
{¶ 8} “THIS IS A FINAL APPEALABLE ORDER.
“___________/s/___________
“Thomas J. Capper, Judge”
{¶ 9} On July 18, 2011, George filed a notice of appeal from
the Entry of June 28, 2011. George’s brief on appeal presents
the following two assignments of error: 4
FIRST ASSIGNMENT OF ERROR
{¶ 10} “The order designating the Defendant/Appellee, JILL M.
BENNETT, as the residential parent for the two minor children,
adopted by the trial court, is based in an erroneous conclusion
drawn by the magistrate which is not supported by the evidence
presented during the various hearings held herein when the adoption
of either of the shared parenting plans submitted by
Plaintiff/Appellant, GEORGE F. BENNETT, JR. is, in fact, supported
by the evidence presented during the various hearings and is truly
in the best interest of the minor children.”
SECOND ASSIGNMENT OF ERROR
{¶ 11} “The trial court abused its discretion by adopting the
magistrate’s decision finding against the manifest weight of the
evidence that Plaintiff/Appellant, GEORGE BENNETT JR’s USAA
personal injury settlement from an accident, which occurred while
on duty as an officer of the Clark County Sheriff were marital
property subject to division during the divorce.”
{¶ 12} The two errors George assigns for our review present
the same contentions that the court rejected when it overruled
George’s objection to the magistrate’s decision in those same
respects.
{¶ 13} The appellate jurisdiction of the courts of appeals to
review final judgments and orders of lower courts of record is 5
as may be provided by legislative enactment. Section 3(B)(2),
Article IV, Ohio Constitution. That jurisdiction is limited to
final orders, judgments, and decrees. Id.; R.C. 2505.03(A).
Final orders and judgments are defined by R.C. 2505.02.
{¶ 14} “A final appealable order has three essential
characteristics: it is final under Civil Rule 54(B); appealable
under RC Ch. 2505; and meets the definition of an order, judgment,
or decree. Each of these characteristics is a separate
requirement, the absence of any of which will deprive the court
of jurisdiction to hear the appeal.” Sowald & Morganstern, Ohio
Practice Domestic Relations Law (2009) 725, Section 32:1 (emphasis
in original).
{¶ 15} A judgment and decree of divorce is final under Civ.R.
54(B) when it determines every claim presented by the parties to
an action. It is then appealable under R.C. 2505.02(B)(1) because
the judgment and decree “affects a substantial right in an action
that in effect determines the action and prevents a judgment.”
It meets the definition of a judgment, order, or decree when it
satisfies the definitional provisions of Civ.R. 54(A), which
states:
{¶ 16} “Definition; form. ‘Judgment’ as used in these rules
includes a decree and any order from which an appeal lies as provided
in section 2505.02 of the Revised Code. A judgment shall not 6
contain a recital of pleadings, the magistrate’s decision in a
referred matter, or the record of prior proceedings.” (Emphasis
supplied.)
{¶ 17} When no objections to a magistrate’s decision are filed,
the court may adopt the decision as the court’s order “unless it
determines that there is an error of law or other defect evident
on the face of the magistrate’s decision.” Civ.R. 53(D)(4)(c).
In that instance the court performs no independent review of the
merits of the magistrate’s decision, because the lack of objections
waives the parties’ right to such a review, as well as the right
to assign error on appeal concerning the court’s adoption of
findings of fact or conclusions of law in the magistrate’s decision.
Civ.R. 53(D)(3)(b)(iv).
{¶ 18} When timely objections are instead filed, “the court
shall undertake an independent review as to the objected matters
to ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law.” Civ.R.
54(D)(4)(d). That review is the equivalent of a de novo
determination. Klamfoth v. Klamfoth (April 9, 1996), Franklin
App. No. 95APF10-1396.
{¶ 19} “In addition to specifically ruling on objections, it
has long been held that the trial court must issue a separate
judgment reflecting its own decision. A judgment which 7
incorporates the trial court’s own decision on objections to the
magistrate’s decision meets the requirements of a final order under
Civil Rule 54(A).[]
{¶ 20} “Civil Rule 54(A) provides that ‘[a] judgment entry shall
not contain a recital of pleadings, the magistrate’s decision in
a referred matter, or the record of prior proceedings.’ A trial
court must render its own separate judgment and may not simply
state that it approves, adopts, or incorporates a magistrate’s
decision. A judgment entry is not sufficient if it merely recites
that a recommendation/decision is approved and adopted thereby
requiring the parties to refer to another document in order to
determine exactly what their rights and obligations are. It has
been said that ‘. . . the judgment entry must be worded in such
a manner that the parties can readily determine what is necessary
to comply with the order of the court’ and need not resort to any
other documents.[] Accordingly, for a judgment entry of the court
to be a final appealable order, it must adopt, reject, or modify
the magistrate’s decision and state, for identification purposes,
the date the magistrate’s decision was filed.[] It should state
the outcome and contain an order which states the relief granted
so that the parties are able to determine their rights and
obligations by referring solely to the judgment entry and should
be a document separate from the magistrate’s decision.[]” Sowald 8
& Morganstern, Ohio Practice Domestic Relations Law (2009) 701-02,
Section 31:13 (internal footnotes omitted).
{¶ 21} The “Entry” the court filed on June 28, 2011, from which
this appeal is taken, fails to contain an order or orders which
states the relief the court granted the parties concerning the
matters in the magistrate’s decision to which George filed his
two objections, in order that the parties could determine and be
aware of their rights and obligations solely from the court’s
judgment, separate from the magistrate’s decision to which the
judgment also makes reference. In that respect, the judgment
improperly contained a “recital” of the magistrate’s decision as
the basis of the relief the court purported to grant, contrary
to Civ.R. 54(A). In its form, therefore, the June 28, 2011 Entry
from which this appeal is taken fails to meet the definition of
a judgment, order, or decree. Not being a judgment, order, or
decree, the entry is not subject to appellate review. R.C.
2505.03(A). We therefore lack jurisdiction to review the error
assigned.
{¶ 22} The appeal will be dismissed and the case remanded to
the trial court for further proceedings on the objections the
parties filed. The parties should note that in the event the court
rules on questions of fact in their objections by entering a
judgment which is proper in its form for purposes of Civ.R. 54(A) 9
but nevertheless general in its character, an aggrieved party may
request findings of fact and conclusions of law from the court
pursuant to Civ.R. 52. Findings and conclusions would greatly
aid in narrowing the issues in any future appeal.
FROELICH, J., concurs.
HALL, J., dissents.
Hall, J., dissenting:
{¶ 23} I do not believe that the trial court is required to
re-publish a 51-page Judgment Entry and Decree of Divorce that
adopted the Magistrate’s decision and which was filed before timely
objections were filed by both parties. The Entry overruling of
the objections in their entirety, after an independent review is,
in my view, a final order and I would address the merits of the
appeal.
Copies mailed to:
Douglas W. Geyer, Esq. Jon Paul Rion, Esq. Hon. Thomas J. Capper