In re K.P.R.

966 N.E.2d 952, 197 Ohio App. 3d 193
CourtOhio Court of Appeals
DecidedNovember 28, 2011
DocketNo. CA2011-03-023
StatusPublished
Cited by17 cases

This text of 966 N.E.2d 952 (In re K.P.R.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re K.P.R., 966 N.E.2d 952, 197 Ohio App. 3d 193 (Ohio Ct. App. 2011).

Opinion

Powell, Presiding Judge.

{¶ 1} The biological father of a 15-year-old boy asks this court to overturn a decision of the Warren County Juvenile Court granting the stepfather’s request to have a set schedule of visitation with the boy after the boy’s mother died suddenly. We affirm the juvenile court’s visitation decision, finding that the juvenile court had jurisdiction to consider the visitation request and that the father waived his other arguments when he failed to object to the magistrate’s decision, but vacate the juvenile court’s property order as being without jurisdiction.

{¶ 2} K.P.R. lived with his mother and stepfather, and the father exercised parenting time. The boy’s parents were never married, and the stepfather was [195]*195part of the child’s life for 13 years and was married to the child’s mother for 11 years. The mother died suddenly in August 2010, while K.P.R. was visiting with the father. The boy remained in the father’s home.

{¶ 3} In September 2010, the stepfather filed a motion in juvenile court for custody or for visitation. The juvenile court magistrate issued a 14-page decision that indicated that the stepfather was not seeking custody at that time but wanted a set schedule for visitation. The magistrate noted that the father said he did not oppose visitation but didn’t want a set schedule and wanted to control the amount of visitation. The magistrate awarded visitation for the stepfather in conformance with the juvenile court’s “Basic Parenting Schedule, Basic I.”

{¶ 4} While no order is part of the record provided to this court, it appears that the court permitted the father to take some of KJP.R.’s belongings from the stepfather’s home after the mother’s death. The father also removed furniture from KP.R.’s room at the same time. The magistrate ordered the father to return to the stepfather the bed, mattress, box springs, dresser with mirror, and nightstand.

{¶ 5} The juvenile court adopted the decision on the same day it was filed. Neither party objected to the magistrate’s decision. This appeal was taken by the father, raising six assignments of error for our review.

{¶ 6} The first question that this court must address is the consequence of the father’s failure to file objections to the magistrate’s decision. The father’s appellate counsel argues that the father was precluded from filing objections with the juvenile court because the juvenile court adopted the magistrate’s decision. The juvenile rules, as outlined below, clearly indicate otherwise. Moreover, the magistrate’s decision contained a number of paragraphs at the end of the decision that outlined the procedures under Juv.R. 40.

{¶ 7} A party may file written objections to a magistrate’s decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Juv.R. 40(D)(4)(e)(i). Juv.R. 40(D)(3)(b)®; see comparable rules of Civ.R. 53 and Crim.R. 19. A magistrate’s decision is not effective unless adopted by the court. Juv.R. 40(D)(4)(a). If no timely objections are filed, the court may adopt a magistrate’s decision, unless it determines that there is an error of law or other defect evident on the face of the magistrate’s decision. Juv.R. 40(D)(4)(c).

{¶ 8} The court may enter a judgment either during the 14 days permitted by Juv.R. 40(D)(3)(b)® for the filing of objections to a magistrate’s decision or after the 14 days have expired. Juv.R. 40(D)(4)(e)®. If the court enters a judgment during the 14 days permitted by Juv.R. 40(D)(3)(b)® for the filing of objections, the timely filing of objections to the magistrate’s decision operates as an [196]*196automatic stay of execution of the judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered. Id.

{¶ 9} Juv.R. 40(D)(3)(b)(iv) provides: “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 * * * as required by Juv.R. 40(D)(3)(b).” This waiver under the rule embodies the long-recognized principle that the failure to draw the trial court’s attention to possible error when the error could have been corrected results in a waiver of the issue for purposes of appeal. In re C.P., Brown App. No. CA2010-12-025, 2011-Ohio-4563, 2011 WL 4012400.

{¶ 10} This court previously ruled that unless the appellant argues a “claim of plain error,” the appellant has waived the claimed errors not objected to below. See State v. Shie, Butler App. No. CA2007-02-038, 2008-Ohio-350, 2008 WL 296395, ¶ 45 (this court has construed a similar provision in Civ.R. 53 literally and found that where a party fails to expressly raise a claim of plain error on appeal, we need not consider whether plain error exists); In re D.R., Butler App. No. CA2009-01-018, 2009-Ohio-2805, 2009 WL 1655409, ¶ 30 (appellant did not specifically object to the magistrate’s foregoing finding and does not claim plain error here and is thereby precluded from raising this issue on appeal); Allgeier v. Allgeier, Clinton App. No. CA2009-12-019, 2010-Ohio-5313, 2010 WL 4340650, ¶ 22-23 (by failing to raise the issue in his objection, or argue plain error in his brief, appellant is prohibited from challenging the court’s custody determination for the first time on appeal); In re C.P., 2011-Ohio-4563, 2011 WL 4012400, at ¶ 35.

{¶ 11} Accordingly, the father has waived most, but not all, of his assignments of error by failing to object to the magistrate’s decision. Two of the father’s assignments of error — the first and sixth — challenge the subject-matter jurisdiction of the juvenile court, and the fifth assignment of error will be incorporated into the first assignment of error. The issues raised in those assignments will be discussed below.

{¶ 12} Assignment of Error No. 1:

{¶ 13} “The trial court erred in not dismissing the stepfather’s motion for custody.”

{¶ 14} In this assignment of error, the father argues that the juvenile court did not have jurisdiction over a case filed under the nonparent-visitation statute of R.C. 3109.11 and because the stepfather originally requested custody, jurisdiction did not extend to issues of visitation only.

[197]*197{¶ 15} It is axiomatic that subject-matter jurisdiction cannot be waived, cannot be conferred upon a court by agreement of the parties, and may be the basis for sua sponte dismissal. Carroll Cty. Bur. of Support v. Brown (Nov. 6, 2001), Carroll App. No. 00AP0742. Lack of subject-matter jurisdiction is not a waivable defense and may be raised for the first time on appeal. Id. Subject-matter jurisdiction focuses on the court as a forum and on the case as one of a class of cases, not on the particular facts of a case or the particular tribunal that hears the case. Id.

{¶ 16} The stepfather filed a motion for custody or for parenting time. The father argues that the juvenile court is a court of limited jurisdiction, possessing only those powers the Ohio General Assembly conferred upon it. Section 4(B), Article IV of the Ohio Constitution. The father’s argument principally relies on a statute and an Ohio Supreme Court case.

{¶ 17} Specifically, the father cites R.C. 2151.23, which states that a juvenile court has jurisdiction to determine the custody of any child not a ward of another court of this state.

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Cite This Page — Counsel Stack

Bluebook (online)
966 N.E.2d 952, 197 Ohio App. 3d 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kpr-ohioctapp-2011.