Elson v. Plokhooy

2011 Ohio 3009

• Court: Ohio Court of Appeals
• Decided: June 20, 2011
• Docket: 17-10-24
• Status: Published

Opinion

[Cite as Elson v. Plokhooy,2011-Ohio-3009.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

FRANK ELSON,

PLAINTIFF-APPELLEE, CASE NO. 17-10-24

v.

MELISSA PLOKHOOY, OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Domestic Relations Division Trial Court No. 02-DV-000078

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: June 20, 2011

APPEARANCES:

John A. Poppe for Appellant

Jeffrey J. Beigel for Appellee Case No. 17-10-24

ROGERS, P.J.

{¶1} Defendant-Appellant, Melissa Plokhooy, appeals from the judgment

of the Court of Common Pleas, Domestic Relations Division, of Shelby County

reallocating parental rights and responsibilities of their daughter. On appeal,

Melissa argues that the trial court erred by failing to read the trial transcript before

entering judgment; that the trial court failed to consider the deposition of Melissa

and her child’s licensed counselor; that the trial court erred in failing to conduct a

post-trial in camera interview with the child; and, that the trial court erred by

failing to mandate that the guardian ad litem (“GAL”) comply with Ohio Rules of

Superintendence 48(D)(8) and 48(D)(1). Finding that the trial court committed no

reversible error in the assignments but finding that the trial court committed plain

error, we affirm in part and reverse in part.

{¶2} In April 2002, Frank filed a Complaint for Divorce from Melissa in

the Common Pleas Court of Shelby County, Domestic Relations Division. In

November 2002, the trial court entered a Decree of Divorce awarding Melissa the

care, custody, maintenance and control of their child, Shelby Elson (“the child”),

as residential parent. Frank was declared the non-residential parent and granted

visitation with the child. In 2004, Melissa appealed the trial court’s decision

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granting Frank’s motion for an increase in time with the child. We affirmed the

decision of the trial court.

{¶3} In July 2009, Frank filed a Motion for Residential Parenting and/or

Shared Parenting and Appointment of a GAL and an In Camera Interview arguing

that there was a substantial change of circumstances in that the child is now ten

years of age, is having difficulties residing with her mother, and now desires to

reside with her father. On July 31, 2009, Melissa filed a Motion to Dismiss

Plaintiff’s Pleading for Reallocation of Parental Rights and Responsibilities, or in

the alternative a Motion for Contempt, as Frank failed to comply with a previous

court order requiring mediation before either party may file additional motions in

court. On August 21, 2009, the magistrate filed a magistrate’s order referring the

parties to mediation. 1

{¶4} On September 28, 2009, the magistrate filed an Order Appointing a

GAL for the child.

{¶5} On October 7, 2009, Melissa filed a Motion to Reallocate Parental

Rights and Responsibilities seeking the court to allow her to spend every other

Sunday with the child as a previous court order allowed her to spend only five

Sundays a year with the child.

1 Although captioned “Judgment Entry”, a magistrate does not have the authority to issue a judgment entry. See Civ.R. 53(D)(1) relating to procedural orders.

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{¶6} On November 30, 2009, Michelle Salazar, the GAL, submitted a

report and recommendation recommending, inter alia, that Frank and Melissa

participate in shared parenting of the child, that the child reside with Frank during

the school week, that the child attend Minster Schools, and that the child visit with

Melissa on alternating weekends, one evening per week, and three Sundays per

month. This report was submitted into evidence during the hearing on April 1,

2010.

{¶7} On December 8, 2009, Melissa filed a Settlement Statement

proposing, inter alia, that she remain the residential parent; that Frank’s visitation

shall consist of every other weekend; that the prior decision regarding the Sunday

scheduling be vacated; that there be no shared parenting as Frank does not

participate in parent-teacher conferences, doctor’s appointments, and is not

cooperative or conversational with Melissa regarding the child’s health concerns,

behavioral issues, or extracurricular activities, or in the alternative, that shared

parenting be allowed after Frank obtains counseling, shows interest in the child’s

health and education, and pays past medical expenses for the child.

{¶8} On December 16, 2009, the magistrate conducted an in camera

interview of the child.

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{¶9} On December 18, 2009, Frank filed a Shared Parenting Plan whereby,

inter alia, Frank and Melissa would share the care, custody, and control of the

child, the primary residence of the child would be with Frank, and the school

district for the child would be Minster Schools.

{¶10} On March 31, 2010, Frank filed an Amendment to the Shared

Parenting Plan to include, inter alia, that Melissa and the child are to continue

counseling with Aaron Kuhn, their current counselor, and that Frank is to also

attend counseling sessions and the child’s medical appointments as deemed

necessary.

{¶11} On April 1, 2010, the magistrate heard the case. On April 29, 2010

he issued his decision implementing the Shared Parenting Plan filed by Frank on

December 18, 2009. The magistrate modified the Shared Parenting Plan by

allowing, inter alia, Melissa two evening visits per week.

{¶12} On May 12, 2010, Melissa filed an Objection to the Magistrate’s

Decision and a Request to Supplement Objection to Magistrate’s Report, stating:

[T]he depositions and transcripts have been filed timely, [and] the transcript of the hearing is now ordered. However, the Court Reporter indicates there is another case which has ordered a transcript and that one must be completed before the one in this case can be prepared.

Request to Supplement Objection to Magistrate’s Report, p. 1.

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{¶13} On May 20, 2010, Frank filed a Motion for Extension of Time to

Respond to Melissa’s Objections. On May 24, 2010, the magistrate granted Frank

20 days from the filing date to respond.

{¶14} On July 28, 2010, the court reporter filed a Notice of Serving

Transcript.

{¶15} On August 10, 2010, Frank filed a Motion to Dismiss Objections of

Defendant and for an Order Affirming the Magistrate’s Decision with a supporting

memorandum.

{¶16} On August 11, 2010, the court reporter filed a Notice that the

transcript of the April 1, 2010 proceedings had been filed with the magistrate and

both Melissa and Frank’s attorneys on August 9, 2010.

{¶17} On August 11, 2010, Melissa filed a Supplemented Objection to

Magistrate’s Decision, and on August 13, 2010, she filed a Motion to Dismiss

Objections of Plaintiff with a supporting memorandum.

{¶18} On August 19, 2010, Stephen W. King filed an Entry of Appearance

as an attorney for the child.

{¶19} On August 30, 2010, Frank filed a Response to Objections of

Defendant to Magistrate’s Report.

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{¶20} On September 13, 2010, King filed a Request for an In Camera

Interview of the child and a memorandum in support indicating that the child had

changed her mind.

{¶21} On September 14, 2010, the trial court entered judgment as follows:

The Shared Parenting Plan filed with this Court on December 18, 2009, as amended on March 31, 2010, is ordered into effect with the following exceptions: Plokhooy shall be entitled to visitation with Shelby two evenings per week from 5:00 P.M. to 8:00 P.M with those visitations to be arranged to not conflict with school or extracurricular activities of Shelby. The parents are to attend counseling sessions and medical appoints for Shelby as deemed necessary by those providers.

(Decision/Order On Defendant’s Objections To Magistrate’s Decision, Docket No.

174.) The trial court ordered Plaintiff’s counsel to prepare a judgment order entry

in accordance with the decision, circulate it to opposing counsel, and file it with

the court pursuant to local rules.

{¶22} On September 24, 2010, Melissa filed an Objection to Filing

Judgment Entry/Shared Parenting Plan Decree as her counsel never approved the

Shared Parenting Plan and it was filed outside of Local Rule 10. On this same

day, the trial court filed the Judgment Entry of Shared Parenting.

{¶23} On September 30, 2010, King filed a Request to Add the Child as a

Party, a Renewed Request for an In Camera Interview, and for a Stay of the

Judgment as the child had decided she did not want her custody transferred to her

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father, did not want to transfer schools, and that her initial preference to live with

her father was prompted by her father.

{¶24} On October 1, 2010, Melissa filed a Motion to Modify Judgment

Entry/Shared Parenting Decree, a Motion to Stay the Judgment Pending an

Appeal, a Motion in Contempt, her affidavit, and a Notice of Appeal. The

subsequent pleadings will not be addressed.

{¶25} On November 30, 2010, Melissa appealed the trial court’s September

14, 2010 Judgment Entry, asserting the following assignments of error:

Assignment of Error No. I

THE TRIAL COURT ERRED BY NOT READING THE TRIAL TRANSCRIPT WHICH WAS IN THE COURT’S POSSESSION PRIOR TO DETERMINING THE FACTS OF THE CASE AND THE COURT THEREBY DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW.

Assignment of Error No. II

TRIAL COURT FAILED TO CONSIDER THE DEPOSITION OF AARON KUHN, LICENSED COUNSELOR, WHICH WAS ADMITTED INTO EVIDENCE BY STIPULATIONS, YET NOT READ BY THE COURT.

Assignment of Error No. III

THE COURT ERRED IN NOT CONSIDERING APPLYING OHIO CIVIL RULE 53(D)(4)(B) TO CONDUCT AN IN CAMERA INTERVIEW WITH THE CHILD, UPON LEARNING THAT THE CHILD HAD INDEPENDENT LEGAL COUNSEL WHO REQUESTED THE COURT TO

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TAKE ACTION ON PROTECTING THE CHILD WHO OPPOSED THE RECOMMENDATION OF THE GUARDIAN AD LITEM.

Assignment of Error No. IV

THE COURT ERRED WHEN IT FAILED TO REQUIRE THE GUARDIAN AD LITEM TO COMPLY WITH THE RULES OF SUPERINTENDENCE 48(D)(8) WHEREIN SHE FAILED TO REPORT THAT HER RECOMMENDATION WAS IN CONFLICT WITH THE WISHES OF THE CHILD AS WELL AS SUPERINTENDENCE 48(D)(1) BY NOT FILING AN UPDATED REPORT DURING THE FOUR MONTHS FOLLOWING THE DATE OF THE REPORT AND THE HEARING ON THE MERITS.

{¶26} Due to the nature of Melissa’s assignments of error we elect to

address her third and fourth assignments of error together.

Standard of Review

{¶27} “The standard of review generally applied when reviewing a court’s

adoption of a magistrate’s decision is abuse of discretion.” DeFrank-Jenne v.

Pruitt, 11th Dist. No. 2008-L-156, 2009-Ohio-1438, ¶8.

{¶28} In her first assignment of error, Melissa contends that the trial court

erred and deprived her of due process of the law when it failed to consider the

transcript of the April 1, 2010 hearing before rendering its decision. We disagree.

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{¶29} Frank argues that Melissa did not timely file the transcript or a

motion for extension of time to file the transcript in accordance with Ohio Rules of

Civil Procedure 53(D)(3)(b)(iii) and that the delay was prejudicial to the parties

and the administration of justice. We agree.

{¶30} Ohio Rule of Civil Procedure 53(D)(3)(b)(iii) governs objections to

magistrate’s factual findings and requires, in pertinent part, that:

An objection to a factual finding, whether or not specifically designated as a finding of fact . . . shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding

***

The objecting party shall file the transcript . . . with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.

Civ.R. 53(D)(3)(b)(iii).

{¶31} On May 12, 2010, Melissa filed her Objections to the Magistrate’s

Decision and a Request to Supplement her Objections, stating:

While the depositions and transcripts have been filed timely, the transcript of the hearing is now ordered. However, the Court Reporter indicates there is another case which has ordered a transcript and that one must be completed before the one in this case can be prepared.

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Defendant asks leave of the [c]ourt so that upon completion of the transcript, Defendant may have a reasonable period of time before supplementing the Objections filed this date.

(Docket No. 160). Melissa did not file a motion for an extension of time within

which to file the transcript. On May 20, 2010, Frank filed a Motion for an

Extension of Time to Respond to Melissa’s Objections. The trial court granted

Frank a 20-day extension on May 24, 2010. The transcript was filed August 9,

2010. (Docket No. 166). The trial court rendered its decision on September 14,

2010. As Melissa made no motion for an extension of time to file the transcript

and the court made no ruling as to the request to supplement the objections,

Melissa did not file the transcript in accordance with Civil Rule 53(D)(3)(b)(iii).2

Further, Melissa took no action to follow-up with the court during the two and a

half months that it apparently took to prepare the transcript. Therefore, we find

that the trial court did not abuse its discretion in failing to consider the transcript.3

2 Arguably, the request to supplement objections can be said to be in compliance with Civ.R. 53(D)(3)(b)(iii). Nonetheless, the trial court never extended the time in writing as required by the rule. Further, Melissa should have been aware that the court had not ruled and had ample opportunity to move the court to do so as the court subsequently extended Frank’s time to respond. 3 Further, Melissa argues that the trial court’s failure to review the transcript was a denial of her due process rights. Melissa presented evidence at the hearing, which was heard by the magistrate. The failure of the trial court to read the transcript, which was not properly filed, does not deprive her of her opportunity to be heard. Assuming arguendo this constituted a due process violation, one cannot sit on one’s rights and then argue that they have been violated.

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See, also, Dean v. Dean, 12th Dist. No. 98-07-012, 1999 WL 211828; Ludlow v.

Ludlow, 11th Dist. No. 2006-G-2686, 2006-Ohio-6864.

{¶32} Accordingly, we overrule Melissa’s first assignment of error.

{¶33} In her second assignment of error, Melissa contends that the trial

court erred in failing to consider the deposition of Aaron Kuhn (“Kuhn”), the

licensed counselor, even though it was admitted into evidence by stipulation.

Melissa highlights several of Kuhn’s statements and characterizations of the

parties as well as his opinion as to the best way to parent a child with Attention

Deficit Disorder. She then states that the court erred in failing to consider this

deposition before rendering a decision.

{¶34} Frank contends that this argument merely rephrases the argument in

the first assignment of error and reasserts that the failure of the trial court to

consider evidence that was contained in the transcript does not amount to an abuse

of discretion.

{¶35} Initially, we note that the deposition of Kuhn was filed with the court

on March 29, 2010. (Docket No. 155). We, therefore, give no weight to Frank’s

argument as it was not solely submitted as part of the transcript. Similarly, we

give no weight to Melissa’s argument as she fails to cite to any case law or statute

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that supports her argument as required by App.R. 16(A)(7). We, therefore,

disregard this assignment of error as allowed by App.R. 12(A)(2). Meerhoff v.

Huntington Mtge. Co. (1995), 103 Ohio App.3d 164, 169, 658 N.E.2d 1109.

{¶36} Accordingly, we overrule Melissa’s second assignment of error.

Assignments of Error Nos. III & IV

{¶37} In her third assignment of error, Melissa argues that the court erred in

failing to conduct a second in camera interview with the child once the child

retained independent legal counsel. Specifically, Melissa argues that the GAL

failed to comply with the Ohio Rules of Superintendence 48(D)(8) by failing to

request the court to resolve the conflict between the GAL’s determination of the

child’s best interest and the child’s wishes. Because of the conflict and of the

error committed by the GAL, Melissa contends that the trial court erred in failing

to conduct a second in camera interview.

{¶38} In her fourth assignment of error, Melissa argues that the court erred

when it failed to order the GAL to comply with the Rules of Superintendence

48(D)(8) as the GAL failed to report that her recommendation was in conflict with

the wishes of the child. Melissa also argues that the trial court erred when it failed

to comply with the Rules of Superintendence and 48(D)(1) as the GAL did not

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file an updated report during the four months following the date of the report and

the hearing on the merits.

{¶39} Frank contends that there is no legal support for Melissa’s argument

that, because the child is now represented, she is entitled to a post-hearing

opportunity to raise issues to the court. Further, Frank argues that the decision to

hear additional evidence in a previously referred matter is discretionary pursuant

to Rule of Civil Procedure 53(D)(4)(b) and further, that the court’s refusal to

conduct an in camera interview with the child was not prejudicial to Melissa as she

had the option to reopen the case for a change of circumstance.

{¶40} As in the second assignment of error, Melissa provides no basis in

case law or in statute to support her arguments in the third and fourth assignments

of error. Rather, she cites the Rules of Superintendence. These rules do not have

the same force as a statute or case law, but are rather purely internal housekeeping

rules which do not create substantive rights in individuals or procedural law. Allen

v. Allen, 11th Dist. No. 2009-T-0070, 2010-Ohio-475, citing State v. Gettys

(1976), 49 Ohio App.2d 241, 243; In re K.G., 9th Dist. No. 10CA0016, 2010 –

Ohio-4399, citing Sultaana v. Giant Eagle, 8th Dist. No. 90294, 2008-Ohio-3658,

¶45, State v. Porter (1976), 49 Ohio App.2d 227, 230; State v. Smith (1976), 47

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Ohio App.2d 317. Therefore, Melissa’s third and fourth assignments of error do

not allege any reversible error below.

{¶41} Accordingly, we overrule Melissa’s third and fourth assignments of

error.

{¶42} Although we hold that the trial court did not abuse its discretion and

committed no reversible error in light of her assignments, we find that it did

commit plain error and therefore reverse in part, as it failed to comply with R.C.

3109.04(D)(1)(a)(iii), which states:

If each parent makes a request in the parent’s pleadings or files a motion but only one parent files a plan . . . the court in the best interest of the children may order the other parent to file a plan for shared parenting in accordance with division (G) of this section. The court shall review each plan filed to determine if any plan is in the best interest of the children. If the court determines that one of the filed plans is in the best interest of the children, the court may approve the plan. If the court determines that no filed plan is in the best interest of the children, the court may order each parent to submit appropriate changes to the selected plan to meet the court’s objections. If changes to the plan or plans are submitted to meet the court’s objections, and if any of the filed plans with the changes is in the best interest of the children, the court may approve the plan with the changes.

If the court approves a plan under this division, . . . the court shall enter in the record of the case findings of fact and conclusions of law as to the reasons for the approval or the rejection or denial.

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R.C. 3109.04(D)(1)(a)(iii) (emphasis added). Therefore, if a trial court objects to

portions of a submitted shared parenting plan, it may request that the party file a

modified shared parenting plan to address its concerns. Clark v. Clark, 3d Dist.

No. 14-06-56, 2007-Ohio-5771, ¶40, citing Schattschneider v. Schattschneider, 3d

Dist. No. 2-06-24, 2007-Ohio-2273, ¶6, citing DaSilva v. DaSilva, 12th Dist. No.

CA2004-06-127, 2005-Ohio-5475, ¶11; see also McClain v. McClain (1993), 87

Ohio App.3d 856, 857 (“A court may determine that one of the submitted plans is

in the best interest of the children and adopt that plan verbatim. Barring adoption

of one of the submitted plans, however, a court may only make suggestions for

modification of the plans to the parties.”) (citations omitted).

{¶43} In the present case, the trial court ordered Frank’s Shared Parenting

Plan as amended into effect while making several exceptions. (Decision/Order on

Defendant’s Objections to Magistrate’s Decision, Docket No. 174). The court

then instructed Frank’s counsel “to prepare a Judgment Order in accordance with

this Decision, circulate [it] to opposing counsel, and then file [it] with the [c]ourt

pursuant to the Local Rules.” (Id.). On September 24, 2010, the Judgment

Entry/Shared Parenting Decree was filed. (Docket No. 177).

{¶44} This constitutes reversible error as the trial court did not comply with

the mandates of the statute. First, the trial court never explicitly determined that

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the Shared Parenting Plan was in the best interest of the child. Second, assuming

that the trial court did find that Frank’s Shared Parenting Plan was in the child’s

best interest, it erred by failing to approve the plan. On the other hand, if the trial

court found that no plan was in the child’s best interest, it erred by failing to order

each parent to submit appropriate changes to Frank’s plan to meet its’ objections.

By ordering only Frank to draft and submit the judgment entry and then signing

the judgment entry, the trial court fell short of satisfying the requirements of R.C.

3109.04(D)(1)(a)(iii). Lastly, the trial court did not enter into the record its

findings of fact and conclusions of law when it approved the Shared Parenting

Plan. Such procedure was clearly contrary to law, and therefore constituted plain

{¶45} Having found no error prejudicial to Melissa herein, in the particulars

assigned and argued, but having found plain error prejudicial to Melissa, we affirm

in part, reverse in part, and remand the judgment of the trial court for further

proceedings consistent with this opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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