In re C. ST.

2011 Ohio 4392

• Court: Ohio Court of Appeals
• Decided: August 31, 2011
• Docket: 25758
• Status: Published

Opinion

[Cite as In re C. ST., 2011-Ohio-4392.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: C. ST. C.A. No. 25758 M. ST.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN-02-10-0879 DN-02-10-0880

DECISION AND JOURNAL ENTRY

Dated: August 31, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} When James Stemple and Tonya Smith divorced in 2006, Mr. Stemple became

the residential parent for the couple’s children, C.S., who was born on July 25, 2000, and M.S.,

who was born on September 9, 2002. In September 2010, Stacy Smith, who is married to Tonya

Smith’s brother, moved the Summit County Juvenile Court for legal custody of C.S. and M.S.

Following an evidentiary hearing, a magistrate filed a Magistrate’s Decision in which he

determined that legal custody should be granted to Stacy Smith. The trial court filed a Judgment

Entry and Order doing so. Mr. Stemple objected to the Magistrate’s Decision, the trial court

overruled his objection, and he has appealed to this Court, arguing that the trial court’s decision

is against the manifest weight of the evidence. This Court affirms the trial court’s judgment

because Mr. Stemple failed to support his objection to the Magistrate’s Decision in the trial court

with a transcript of the evidentiary hearing. 2

BACKGROUND

{¶2} Summit County Children Services became involved with C.S. and M.S. in 2002,

when C.S. was two years old and M.S. was five weeks old. At that time, Children Services

alleged that they were dependent and neglected, and the Juvenile Court placed them in Children

Service’s temporary custody. The parties stipulated to a finding that C.S. and M.S. were

dependent children and to dismissal of the allegations of neglect. Eventually, the children were

returned to the legal custody of their parents with an Order of Protective Supervision by Children

Services, and, in July 2003, the trial court terminated the Order of Protective Supervision.

{¶3} As previously mentioned, the parents divorced in 2006, and Mr. Stemple became

the residential parent. In September 2010, Stacy Smith moved for emergency temporary custody

and for a change of legal custody to her, alleging that C.S. and M.S. were being mistreated by

Mr. Stemple’s brother, who lived with Mr. Stemple and the children. The parents stipulated to

temporary custody being awarded to Stacy Smith. Following an evidentiary hearing, the

magistrate to whom this matter was assigned filed a Magistrate’s Decision recommending that

legal custody be awarded to Stacy Smith. The trial court filed a Judgment Entry and Order doing

so. Mr. Stemple objected to the Magistrate’s Decision, the trial court overruled his objection,

and he has appealed to this court.

DISCUSSION

{¶4} Mr. Stemple’s sole assignment of error is that the trial court’s judgment is against

the manifest weight of the evidence. Under Rule 40(D)(3)(b)(iii) of the Ohio Rules of Juvenile

Procedure, a party objecting to a magistrate’s factual findings must support his objection in the

trial court with a transcript of all the evidence that was submitted to the magistrate relevant to

that factual finding. Under Rule 40(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a party 3

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 Juv.R.

40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R.

40(D)(3)(b).”

{¶5} Mr. Stemple objected to the Magistrate’s Decision on December 10, 2010,

asserting that it was against the manifest weight of the evidence. The trial court overruled his

objection on December 27, 2010, specifically noting that he had failed to arrange for a transcript

of the evidence that had been before the magistrate. Mr. Stemple did arrange for inclusion of a

transcript of the proceedings before the magistrate in the record before this Court. The time

stamp on that transcript, however, indicates that it was not filed until February 3, 2011, well after

disposition of his objection in the trial court. Accordingly, Mr. Stemple’s objection in the trial

court was not “as required by Juv.R. 40(D)(3)(b),” and this Court can only review this matter for

plain error. The trial court did not commit plain error in overruling Mr. Stemple’s objection to

the Magistrate’s Decision. Accordingly, his assignment of error is overruled.

CONCLUSION

{¶6} Mr. Stemple’s sole assignment of error is overruled. The judgment of the Summit

County Juvenile Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 4

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

CARR, P.J. WHITMORE, J. CONCUR

APPEARANCES:

JAMES STEMPLE, pro se, Appellant.

JONATHAN D. TUCKER, Attorney at Law, for Appellee.