In re E.M.M.

2017 Ohio 4239

• Court: Ohio Court of Appeals
• Decided: June 12, 2017
• Docket: 2016-T-0057
• Status: Published

Opinion

[Cite as In re E.M.M., 2017-Ohio-4239.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

IN RE: E.M.M. : OPINION

: CASE NO. 2016-T-0057 :

Civil appeal from the Trumbull County Court of Common Pleas, Juvenile Division. Case No. 2013 JS 00109.

Judgment: Affirmed.

Gary R. Rich, 342 Mahoning Avenue, N.W., P.O. Box 4010, Warren, OH 44482-4010 (For Appellee Wendy D. Torr).

Christopher A. Maruca, The Maruca Law Firm, LLC, 201 E. Commerce St., Suite 316, Youngstown, OH 44503 (For Appellant Michael E. Masich).

Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E., Warren, OH 44483-5805 (Guardian ad litem).

TIMOTHY P. CANNON, J.

{¶1} Appellant, Michael E. Masich, appeals from the May 9, 2016 order of the

Trumbull County Court of Common Pleas, Juvenile Division, sustaining his objections to

the magistrate’s decision filed January 19, 2016. For the following reasons, the trial

court’s judgment is affirmed.

{¶2} Appellant and appellee, Wendy D. Torr, are the natural parents of minor

child E.M.M. (d.o.b. 9/5/2012); they were never married. Appellee notified appellant she planned to move to Florida with E.M.M. On July 30, 2014, appellant filed a complaint

for allocation of parental rights and responsibilities, a request for shared parenting, and

a request that the natural mother not remove the child from the court’s jurisdiction

pending final resolution of the proceedings. Appellee moved to Florida with E.M.M. on

September 4, 2014.

{¶3} A guardian ad litem was appointed, and the parties agreed to submit to

mediation. On May 1, 2015, appellant filed a motion to adopt a shared parenting plan

with a proposed shared parenting plan attached. Hearings on appellant’s complaint

were held on August 10, 2015, and December 9, 2015.

{¶4} A magistrate’s decision was filed on January 19, 2016. The magistrate

found it in the child’s best interest to remain in the custody of appellee. The magistrate

denied appellant’s request for shared parenting because of the distance between the

parties. The magistrate found appellant should be entitled to the standard guidelines of

visitation for long distance visitation, at a minimum, and also granted appellant two

weeks of visitation with the child, to be exercised February 7, 2016, through February

21, 2016. The trial court entered an order on January 19, 2016, adopting the

magistrate’s decision.

{¶5} On February 2, 2016, appellant filed an objection to the magistrate’s

decision of January 19, 2016, and also a request for a transcript of proceedings.

Appellant took issue with the magistrate’s allocation of visitation, stating:

Due to this abuse of discretion, said objections are being filed requesting that her honor review the transcript and the testimony of all parties which will show that even if the Court determined that father should not receive custody, there is no basis for limiting his amount of time with minor child to eight (8) weeks per year when the minor child is not yet of school age.

2 WHEREFORE, it is hereby father’s request that his objections with respect to additional companionship be granted and this matter be remanded to the Magistrate for further hearing pursuant to the amount of companionship that should be exercised between father and the subject minor child. To provide father with this amount of limited time based upon the totality of the evidence presented is clearly an abuse of the Magistrate’s discretion[.]

{¶6} Although appellant made reference to his motion to adopt the shared

parenting agreement in passing, he did not make specific objections to the portion of the

magistrate’s decision that recommended overruling his motion for custody and motion

for shared parenting. Appellee filed a brief in opposition to the objection on May 3,

2016.

{¶7} A transcript of the proceedings before the magistrate was filed on May 6,

2016. On May 9, 2016, the trial court entered a judgment order, sustaining appellant’s

objection to the magistrate’s decision and remanding the matter to the magistrate “for

further consideration of additional visitation in excess of the Court’s Standard Long

Distance Schedule and the GAL’s recommendation for additional visitation.” The court

stayed all orders previously issued by the magistrate. Essentially, the trial court

sustained the objection and remanded the matter to the magistrate for further

consideration.

{¶8} On June 7, 2016, appellant filed a timely notice of appeal from the trial

court’s May 9, 2016 judgment order.

{¶9} On August 3, 2016, appellant filed a motion for remand in this court.

Appellant stated his appeal was filed relative to the issue of custody, but requested that

the matter be remanded pursuant to the May 9, 2016 order sustaining his objection and

3 remanding the matter of visitation to the magistrate for further hearing. The motion for

remand was granted on August 11, 2016.

{¶10} On remand, a hearing on visitation was held September 2, 2016. The

magistrate noted the proceeding was a “Hearing on visitation on remand following

Objection to Magistrate’s Decision.” The magistrate filed a decision on September 12,

2016, recommending visitation according to the standard guidelines for long distance

visitation with the following additional weeks: the last full week in October, the last full

week in February, and the last full week in April. There were no other modifications to

the magistrate’s prior decision. Appellant did not file objections to this magistrate’s

decision. The trial court entered judgment on September 12, 2016, adopting the

magistrate’s decision. Appellant did not file a transcript of the September 2, 2016

hearing with this court.

{¶11} Appellant filed his appellate brief on November 2, 2016. No appellee’s

brief was filed.

{¶12} On appeal, appellant asserts one assignment of error:

{¶13} “The Trial Court and the Magistrate abused their discretion in failing to

designate Father/Appellant the Custodial Parent or in failing to order Shared Parenting,

despite the overwhelming weight of the evidence.”

{¶14} Appellant appears to argue the trial court failed to consider the best

interest of the minor child when it adopted the magistrate’s decision of January 19,

2016, and ordered the standard visitation schedule, denying appellant’s request for

shared parenting, and granting custody of the child to appellee in Florida. Appellant

maintains it was in the child’s best interest either to remain in Ohio or “to maintain

4 shared parenting until the Minor Child was of school age and distance became a

significant factor.”

{¶15} Under Civ.R. 53(D)(3)(b)(i), “[a] party may file written objections to a

magistrate’s decision within fourteen days of the filing of the decision[.]” “An objection

to a magistrate’s decision shall be specific and state with particularity all grounds for

objection.” Civ.R. 53(D)(3)(b)(ii). “‘[O]bjections must be more than “indirectly

addressed”: they must be specific.’” In re Adoption of K.A.R., 11th Dist. Ashtabula No.

2015-A-0055, 2016-Ohio-4595, ¶8, quoting Ayer v. Ayer, 1st Dist. Hamilton No. C-

990712, 2000 WL 864459, *3 (June 30, 2000). “When an objecting party fails to state

an objection with particularity as required under Civ.R. 53(D)(3)(b)(ii), the trial court may

affirm the magistrate’s decision without considering the merits of the objection.”

Wallace v. Willoughby, 3d. Dist. Shelby No. 17-10-15, 2011-Ohio-3008, ¶20 (citations

omitted).

{¶16} The trial court essentially sustained appellant’s objection with respect to

the magistrate’s allocation of visitation. At oral argument, appellant maintained that he

also filed objections to the magistrate’s denial of the shared parenting agreement and

allocation of custody to appellee. However, the record does not demonstrate that

appellant filed specific objections to those issues. Appellant failed to raise specific

objections with regard to the magistrate’s denial of the shared parenting agreement and

allocation of custody to appellee in the magistrate’s decision of January 19, 2016.

Additionally, the trial court understandably did not recognize objections to those issues

and neither sustained or overruled them in its May 9, 2016 order.

5 {¶17} The visitation order was revised after remand. When it was revised,

appellant raised no objection. Therefore, because appellant never properly objected to

the magistrate’s denial of appellant’s request for shared parenting and grant of custody

to appellee, we review the orders of the trial court for plain error.

{¶18} “Except for a claim of plain error, a party shall not assign as error on

appeal the court’s adoption of any factual finding or legal conclusion * * * unless the

party has objected to that finding or conclusion[.]” Civ.R. 53(D)(3)(b)(iv); see also

Golubski v. U.S. Plastic Equip., LLC, 11th Dist. Portage No. 2015-P-0001, 2015-Ohio-

4239, ¶34. “The plain error doctrine provides for the correction of errors clearly

apparent on their face and prejudicial to the complaining party even though the

complaining party failed to object to the error at trial.” Golubski, supra.

{¶19} Under R.C. 3109.04(A)(1), when one parent files a motion for shared

parenting and submits a proposed parenting plan, but the court finds it is not in the best

interest of the child, “the court, in a manner consistent with the best interest of the

[child], shall allocate the parental rights and responsibilities for the care of the [child]

primarily to one of the parents [and] designate that parent as the residential parent and

the legal custodian of the child[.]” See also Cybulski v. Ramsey, 11th Dist. Ashtabula

No. 2000-A-0061, 2001 WL 734424, *2 (June 29, 2001). In making a determination of

the best interest of the child, the court must consider all relevant factors, including the

factors listed in R.C. 3109.04(F)(1). In re Jacobberger, 11th Dist. Geauga No. 2003-G-

2538, 2004-Ohio-6937, ¶29; see also Smith v. Smith, 11th Dist. Trumbull No. 2009-T-

0064, 2010-Ohio-3051, ¶10 (citations omitted) (“it is not necessary for the trial court to

set forth its analysis as to each factor in its judgment entry so long as it is supported by

6 some competent, credible evidence”). When the court denies a parenting plan, it must

enter in the record findings of fact and conclusions of law as to the reason for the denial.

R.C. 3109.04(D)(1)(a)(iii).

{¶20} Here, the trial court denied appellant’s shared parenting plan. The trial

court entered its findings of fact and conclusions of law, stating it found it in the best

interest of the child to remain in the legal custody of his mother and cited the distance

between the parties as the reason for the denial of appellant’s request for shared

parenting. We, therefore, find no plain error in the trial court’s denial of appellant’s

shared parenting plan and allocation of custody to appellee.

{¶21} Appellant’s sole assignment of error is without merit.

{¶22} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, Juvenile Division is affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.