[Cite as Ellison v. Ellison, 2013-Ohio-3769.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
MICAH ELLISON, : : Plaintiff-Appellee, : Case No. 12CA25 : vs. : : DECISION AND JUDGMENT CRYSTAL ELLISON, : ENTRY : Defendant-Appellant. : Released: 08/22/13 _____________________________________________________________ APPEARANCES:
Justin W. Skaggs, Skaggs Law Office, Jackson, Ohio, for Intervenor/Appellant, Michael Nelson.
Frederick C. Fisher, Jr., McCown & Fisher, LPA, Ironton, Ohio, for Plaintiff/Appellee, Micah Ellison.
Warren Morford, Jr., South Point, Ohio, for Defendant/Appellant, Crystal Ellison.
Courtney Zolman-Walters, South Point, Ohio, Guardian Ad Litem.1 _____________________________________________________________
McFarland, P.J.
{¶1} Michael Nelson, Appellant herein and Intervenor below, appeals
from the judgment of the Lawrence County Court of Common Pleas
adopting the magistrate’s decision granting Micah and Crystal Ellison a
1 Crystal Ellison and Courtney Zolman-Walters have failed to file briefs or otherwise participate in this appeal because Ms. Ellison’s appeal was voluntarily dismissed on April 29, 2013. Lawrence App. No. 12CA25 2
divorce, and naming Micah Ellison as the residential parent of K.E.2
Appellant’s intervention in the case below was based upon his assertion that
he, rather than Micah Ellison, was the biological father of K.E.. On appeal,
Appellant contends that 1) the trial court erred and denied him due process
when it failed to permit him to participate in the final hearing, where he
appeared and asserted his desire to participate; and 2) that the trial court
erred by failing to serve him with a copy of the final appealable order.
{¶2} Because the record indicates that Appellant was provided proper
notice of the final hearing, appeared at the hearing, and was given the
opportunity to present evidence but declined, we cannot conclude that the
trial court prohibited him from participating. Thus, we find no merit to
Appellant’s first assignment of error and therefore it is overruled.
{¶3} However, because we conclude that the trial court erred in failing
to serve Appellant with a copy of the magistrate’s decision, which decision
also lacked the required language required under Civ.R. 53, we must remand
this matter to the trial court in order for the magistrate to prepare a decision
in the proper form, and to provide the necessary service upon Appellant.
Thus, Appellant’s second assignment of error is sustained. Accordingly, the
2 Micah and Crystal Ellison have two other children, the paternity of which was not challenged below and is not at issue in the present appeal. Lawrence App. No. 12CA25 3
decision of the trial court is reversed and remanded for further proceedings
consistent with this opinion.
FACTS
{¶4} Appellees, Micah and Crystal Ellison, were married on May 30,
2002, and three children were born during the marriage. Micah Ellison filed
a complaint for a divorce on August 27, 2010, alleging as part of the divorce
filings that he was the natural parent of all three children born during the
parties’ marriage, including the third and youngest child, K.E., who was
born on January 16, 2008. The parties initially were granted shared
parenting of the children, however, that arrangement soon proved
problematic and was followed with a series of contempt and emergency
custody motions.
{¶5} On January 23, 2012, on the morning of the scheduled divorce
hearing, Michael Nelson filed a motion to intervene in the matter, claiming
that DNA testing had confirmed that he was the biological father of K.E. A
magistrate’s decision filed on January 31, 2012, found Nelson’s motion to be
well taken and ordered Nelson, Crystal Ellison, and K.E. to submit to DNA
testing at the Lawrence County Department of Job and Family Services.
Although Micah Ellison objected to the magistrate’s decision to allow Lawrence App. No. 12CA25 4
Nelson to intervene, the trial court, by entry dated May 10, 2012, found
Nelson had grounds to intervene and again ordered DNA testing.
{¶6} The divorce proceedings came on for final hearing again on June
28th and 29th, 2012. Nelson was provided notice of the scheduled hearing
and actually appeared at the hearing, albeit without counsel. The record
indicates that Nelson’s attorney was not present at the hearing as he was on
vacation. As will be discussed more fully, infra, the trial court inquired as to
whether Nelson intended to ask questions during the proceeding to which
Nelson responded in the negative. The court gave Nelson the option to stay
or leave, after which it appears Nelson left. Noting that Nelson’s counsel
had not contacted the court regarding obtaining a continuance, the court
proceeded to conduct the hearing.
{¶7} A magistrate’s decision was issued on August 20, 2012. The
record reflects that neither Nelson nor his counsel were served with a copy
of the decision. As such, Nelson did not file objections to the magistrate’s
decision. A final, appealable order was subsequently filed by the trial court
on October 22, 2012, followed by an amended final, appealable order on
October 31, 2012. Nelson was not served with either of these orders.
Nonetheless, Nelson filed a timely appeal from the amended final order,
setting forth the following assignments of error for our review. Lawrence App. No. 12CA25 5
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED BY FAILING TO PERMIT APPELLANT TO PARTICIPATE IN THE FINAL HEARING WHERE APPELLANT APPEARED AND ASSERTED HIS DESIRE TO PARTICIPATE DENYING APPELLANT-NELSON DUE PROCESS OF LAW IN CONTRAVENTION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 §16 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED BY FAILING TO SERVE APPELLANT-NELSON WITH A COPY OF A FINAL APPEALABLE ORDER IN CONTRAVENTION OF O. CIV. R. 58(b) AND IN CONTRAVENTION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 §16 OF THE OHIO CONSTITUTION.”
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Nelson contends that the trial
court erred and denied him due process when it failed to permit him to
participate in the final hearing. Micah Ellison counters by arguing that
Nelson was given the opportunity to participate in the hearing, but failed to
take advantage of the opportunity. Based upon our review of the hearing
transcript, we agree with Ellison, and therefore find no error or deprivation
of due process on the part of the trial court.
{¶9} The record indicates that the final divorce was held over a period
of two days beginning on June 28, 2012. Nelson appeared at the hearing
alone, explaining that his counsel was out of town. The transcript indicates
that in response to Nelson’s appearance at the hearing, the court stated that Lawrence App. No. 12CA25 6
“[t]here had previously been an entry preventing you to intervene in this
matter. But there’s not been any thing else filed.” (Emphasis added).
Nelson places much emphasis on this sentence in the transcript, arguing that
the trial court was under the impression that Nelson had been prohibited
from intervening, and therefore prohibited him from participating in the
hearing. However, reading the transcript as a whole, and taking into
consideration the multiple entries in the record indentifying Nelson’s status
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[Cite as Ellison v. Ellison, 2013-Ohio-3769.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
MICAH ELLISON, : : Plaintiff-Appellee, : Case No. 12CA25 : vs. : : DECISION AND JUDGMENT CRYSTAL ELLISON, : ENTRY : Defendant-Appellant. : Released: 08/22/13 _____________________________________________________________ APPEARANCES:
Justin W. Skaggs, Skaggs Law Office, Jackson, Ohio, for Intervenor/Appellant, Michael Nelson.
Frederick C. Fisher, Jr., McCown & Fisher, LPA, Ironton, Ohio, for Plaintiff/Appellee, Micah Ellison.
Warren Morford, Jr., South Point, Ohio, for Defendant/Appellant, Crystal Ellison.
Courtney Zolman-Walters, South Point, Ohio, Guardian Ad Litem.1 _____________________________________________________________
McFarland, P.J.
{¶1} Michael Nelson, Appellant herein and Intervenor below, appeals
from the judgment of the Lawrence County Court of Common Pleas
adopting the magistrate’s decision granting Micah and Crystal Ellison a
1 Crystal Ellison and Courtney Zolman-Walters have failed to file briefs or otherwise participate in this appeal because Ms. Ellison’s appeal was voluntarily dismissed on April 29, 2013. Lawrence App. No. 12CA25 2
divorce, and naming Micah Ellison as the residential parent of K.E.2
Appellant’s intervention in the case below was based upon his assertion that
he, rather than Micah Ellison, was the biological father of K.E.. On appeal,
Appellant contends that 1) the trial court erred and denied him due process
when it failed to permit him to participate in the final hearing, where he
appeared and asserted his desire to participate; and 2) that the trial court
erred by failing to serve him with a copy of the final appealable order.
{¶2} Because the record indicates that Appellant was provided proper
notice of the final hearing, appeared at the hearing, and was given the
opportunity to present evidence but declined, we cannot conclude that the
trial court prohibited him from participating. Thus, we find no merit to
Appellant’s first assignment of error and therefore it is overruled.
{¶3} However, because we conclude that the trial court erred in failing
to serve Appellant with a copy of the magistrate’s decision, which decision
also lacked the required language required under Civ.R. 53, we must remand
this matter to the trial court in order for the magistrate to prepare a decision
in the proper form, and to provide the necessary service upon Appellant.
Thus, Appellant’s second assignment of error is sustained. Accordingly, the
2 Micah and Crystal Ellison have two other children, the paternity of which was not challenged below and is not at issue in the present appeal. Lawrence App. No. 12CA25 3
decision of the trial court is reversed and remanded for further proceedings
consistent with this opinion.
FACTS
{¶4} Appellees, Micah and Crystal Ellison, were married on May 30,
2002, and three children were born during the marriage. Micah Ellison filed
a complaint for a divorce on August 27, 2010, alleging as part of the divorce
filings that he was the natural parent of all three children born during the
parties’ marriage, including the third and youngest child, K.E., who was
born on January 16, 2008. The parties initially were granted shared
parenting of the children, however, that arrangement soon proved
problematic and was followed with a series of contempt and emergency
custody motions.
{¶5} On January 23, 2012, on the morning of the scheduled divorce
hearing, Michael Nelson filed a motion to intervene in the matter, claiming
that DNA testing had confirmed that he was the biological father of K.E. A
magistrate’s decision filed on January 31, 2012, found Nelson’s motion to be
well taken and ordered Nelson, Crystal Ellison, and K.E. to submit to DNA
testing at the Lawrence County Department of Job and Family Services.
Although Micah Ellison objected to the magistrate’s decision to allow Lawrence App. No. 12CA25 4
Nelson to intervene, the trial court, by entry dated May 10, 2012, found
Nelson had grounds to intervene and again ordered DNA testing.
{¶6} The divorce proceedings came on for final hearing again on June
28th and 29th, 2012. Nelson was provided notice of the scheduled hearing
and actually appeared at the hearing, albeit without counsel. The record
indicates that Nelson’s attorney was not present at the hearing as he was on
vacation. As will be discussed more fully, infra, the trial court inquired as to
whether Nelson intended to ask questions during the proceeding to which
Nelson responded in the negative. The court gave Nelson the option to stay
or leave, after which it appears Nelson left. Noting that Nelson’s counsel
had not contacted the court regarding obtaining a continuance, the court
proceeded to conduct the hearing.
{¶7} A magistrate’s decision was issued on August 20, 2012. The
record reflects that neither Nelson nor his counsel were served with a copy
of the decision. As such, Nelson did not file objections to the magistrate’s
decision. A final, appealable order was subsequently filed by the trial court
on October 22, 2012, followed by an amended final, appealable order on
October 31, 2012. Nelson was not served with either of these orders.
Nonetheless, Nelson filed a timely appeal from the amended final order,
setting forth the following assignments of error for our review. Lawrence App. No. 12CA25 5
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED BY FAILING TO PERMIT APPELLANT TO PARTICIPATE IN THE FINAL HEARING WHERE APPELLANT APPEARED AND ASSERTED HIS DESIRE TO PARTICIPATE DENYING APPELLANT-NELSON DUE PROCESS OF LAW IN CONTRAVENTION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 §16 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED BY FAILING TO SERVE APPELLANT-NELSON WITH A COPY OF A FINAL APPEALABLE ORDER IN CONTRAVENTION OF O. CIV. R. 58(b) AND IN CONTRAVENTION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 §16 OF THE OHIO CONSTITUTION.”
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Nelson contends that the trial
court erred and denied him due process when it failed to permit him to
participate in the final hearing. Micah Ellison counters by arguing that
Nelson was given the opportunity to participate in the hearing, but failed to
take advantage of the opportunity. Based upon our review of the hearing
transcript, we agree with Ellison, and therefore find no error or deprivation
of due process on the part of the trial court.
{¶9} The record indicates that the final divorce was held over a period
of two days beginning on June 28, 2012. Nelson appeared at the hearing
alone, explaining that his counsel was out of town. The transcript indicates
that in response to Nelson’s appearance at the hearing, the court stated that Lawrence App. No. 12CA25 6
“[t]here had previously been an entry preventing you to intervene in this
matter. But there’s not been any thing else filed.” (Emphasis added).
Nelson places much emphasis on this sentence in the transcript, arguing that
the trial court was under the impression that Nelson had been prohibited
from intervening, and therefore prohibited him from participating in the
hearing. However, reading the transcript as a whole, and taking into
consideration the multiple entries in the record indentifying Nelson’s status
as an intervenor, it appears that the word “preventing” was a transcription
error that should have read “permitting.” We arrive at this conclusion based
upon the context of the sentence overall, as well as our review of the entire
transcript, which included multiple transcription or typographical errors and
misspellings. For instance, two pages later in the transcript, a word that
obviously should have been transcribed as “continuance,” appears in the
record as “continence.” These are just two examples of the many errors
contained in the transcript.
{¶10} Further, a review of the hearing transcript reveals that the trial
court would have permitted Nelson to participate had he chosen to; however,
when given the option, he declined. For instance, the following exchange
appears in the transcript: Lawrence App. No. 12CA25 7
“COURT: Do you anticipate participating in today’s hearing
as an advocate somewhat?
A. Yes sir I do.
COURT: How so?
A. Trying to see my son.
COURT: Well there is no motion filed for that. I mean I
guess Mr. Skaggs is he still representing you?
A. Yes sir.
***
COURT: Do you intend to ask any questions during today’s
proceedings sir?
A. No sir what I had was a paper that was also um just
proved for the DNA and I just showed here my
attendance was required for today’s date for the
29th sir.
COURT: It’s up to you if you want to hang around but I
don’t know if either one of these gentlemen is
going to call you as a witness or not. And Mr.
Skagg. . . Lawrence App. No. 12CA25 8
A. I think maybe that was the main reason to be here
in case they needed me for a witness.
COURT: And Mr. Skaggs apparently didn’t intend on
presenting any evidence today because he’s not
contacted our office or the court regarding a
continence [sic] or a scheduling conflict with his
office so.
A. Right. Like you said your Honor I didn’t know if
maybe he just wanted me here in case I was
needed.
COURT: I will assume that’s why you’re here then and you
can have a seat out in the hallway if you wish or
you can leave if you wish.”
{¶11} A review of this exchange indicates no action on the part of the
trial court to prevent Nelson from participating in the final hearing. Instead,
it reveals that the court diligently tried to determine Nelson’s intentions in
attending the hearing, which according to Nelson did not include presenting
evidence or asking questions, but rather only to be available as a witness if
called. Based upon the foregoing, we cannot conclude that the trial court
prevented Nelson from participating in the final hearing. Although the Lawrence App. No. 12CA25 9
situation is unfortunate in that Nelson’s counsel was not present, there was
no denial of due process on the part of the court. Accordingly, Nelson’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶12} In his second assignment of error, Nelson contends that the trial
court erred by failing to serve him with a copy of the final, appealable order,
in contravention of Civ.R. 58(B). In his brief, Nelson also points out that he
was not served with a copy of the magistrate’s decision either. Based upon
the following reasoning, we find Nelson’s failure to be served a copy of the
magistrate’s decision requires reversal and a remand to the trial court.
{¶13} Civ.R. 53(D)(3)(a)(iii) states as follows with respect to the
form, filing and service of a magistrate’s decision:
“A magistrate's decision shall be in writing, identified as a
magistrate's decision in the caption, signed by the magistrate,
filed with the clerk, and served by the clerk on all parties or
their attorneys no later than three days after the decision is filed.
A magistrate's decision shall indicate conspicuously that a party
shall not assign as error on appeal the court's adoption of any
factual finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under Lawrence App. No. 12CA25 10
Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required by
Civ.R. 53(D)(3)(b).”
Nelson was permitted to intervene in the matter below and was identified
and served as an intervenor in several court entries. Further, Nelson was
provided with notice of the final hearing and, as discussed above, appeared
at the final hearing, albeit without counsel. Clearly Nelson was a party to
the case and should have been served, either personally or through his
counsel, with a copy of the magistrate’s decision.
{¶14} Further, upon review of the magistrate’s decision that is
contained in the record, we also note that it appears the decision failed to
contain the language set forth in Civ.R. 53(D)(3)(a)(iii) which requires that
the decision conspicuously state the following:
“* * * a party shall not assign as error on appeal the court's
adoption of any factual finding or legal conclusion, whether or
not specifically designated as a finding of fact or conclusion of
law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and
specifically objects to that factual finding or legal conclusion as
required by Civ.R. 53(D)(3)(b).” Lawrence App. No. 12CA25 11
{¶15} The Ninth District Court of Appeals recently held in Keller v.
Keller, 9th Dist. App. No. 25967, 2012-Ohio-4029, at ¶ 7 that where a
magistrate’s decision fails to notify the parties of the need to file objections,
reversal and remand for the preparation of a magistrate’s decision in
compliance with Civ.R. 53(D)(3)(a)(iii) is the appropriate remedy. See also,
Ball v. Meier, 9th Dist. App. No. 26079, 26109, 2012-Ohio-5864, at ¶ 21
(finding the notice on the magistrate’s decision that referenced an incorrect
section under Civ.R. 53 prejudiced the appellant and that such error was not
harmless.); See, also May v. May, 4th Dist. No. 11CA910, 2012-Ohio-2348,
¶ 25 (concluding that the appellant did not waive all but plain error as a
result of his failure to timely file objections to the magistrate’s decision
when the clerk failed to timely serve the appellant).
{¶16} Based upon the foregoing reasoning, we conclude that the facts
sub judice require reversal and remand to the trial court. Here, the record
indicates that not only did the magistrate’s decision fail to include language
required by Civ.R. 53, but also the clerk failed to serve Nelson, who was an
intervenor and party to the case, with a copy of the magistrate’s decision,
thus precluding him from timely filing objections to that decision. As such,
Appellant’s second assignment of error is sustained. Accordingly, the
decision of the trial court is reversed and this matter is remanded for the Lawrence App. No. 12CA25 12
purposes of preparing a Civ.R. 53 compliant magistrate’s decision, and for
proper service to be made upon Michael Nelson.
JUDGMENT REVERSED AND CAUSE REMANDED. Lawrence App. No. 12CA25 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
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.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.