Ellison v. Ellison
Opinion
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.
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
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.
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
“[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:
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