In re L.M.

2011 Ohio 2292

• Court: Ohio Court of Appeals
• Decided: May 10, 2011
• Docket: 96176
• Status: Published

Opinion

[Cite as In re L.M., 2011-Ohio-2292.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96176

IN RE: L.M. IV

(A Minor Child)

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Court Division Case No. SU 02702684

BEFORE: E. Gallagher, J., Sweeney, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: May 10, 2011 FOR APPELLANT

Robert E. Davis 55 Public Square Suite 1500 Cleveland, Ohio 44113-1998

FOR APPELLEE

Sharon Ward, pro se 340 Branford Dr. Richmond Heights, Ohio 44143

ATTORNEY FOR C.S.E.A.

Joseph C. Young Assistant County Prosecutor C.S.E.A. 1910 Carnegie Ave., 2nd Floor Cleveland, Ohio 44115

EILEEN A. GALLAGHER, J.:

{¶ 1} This case came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1.

{¶ 2} Upon review of the record, we find that the appeal was not

timely filed within 30 days of the judgment or order appealed. See App.R.

4(A). Moreover, for the reasons stated below, we find that the order being

appealed is not a final appealable order. Accordingly, we dismiss the instant appeal.

{¶ 3} L.M., III appeals from the decision of the trial court ordering him

to pay $18,641.21 in owed child support. L.M., III argues the trial court

abused its discretion in ordering him to pay this amount because for years

prior to the court’s decision, he was the primary, custodial parent of the

minor child. For the following reasons, we dismiss the instant appeal.

{¶ 4} On September 13, 2002, L.M., III filed a pro se application to

terminate child support. In his application, L.M., III asked the court to

terminate the order of child support because as of the date of the motion, he

was the custodial parent of the minor child. On March 25, 2003, a

magistrate assigned to the case dismissed L.M., III’s application finding

“[t]here is no proof that the Complainant has legal custody of the child in the

absence of the Father without good cause shown. Therefore, the Father

does not have legal standing to request the termination of the present child

support obligation.” The magistrate further ordered the child support

obligation of March 5, 1996, which required L.M., III to pay $352.92 per

month, to remain in full force and effect. The trial court did not act upon

the magistrate’s decision.

{¶ 5} On August 18, 2010, the Child Support Enforcement Agency

issued findings and recommendations to terminate the child support order.

At that time, CSEA determined that the minor child had reached the age of majority and terminated the child support order. CSEA also ordered L.M.,

III to pay $18,641.21 in unpaid support in monthly increments of $335.26 per

month. On November 5, 2010, L.M., III objected to CSEA’s findings

arguing, once again, that he was the custodial parent and that the arrearage

was incorrect. On November 10, 2010, the trial court overruled L.M., III’s

objections.

{¶ 6} It is from this order that L.M., III appeals, raising the following

sole assignment of error:

“The trial court abused its discretion when it incorrectly determined that appellant was the obligor and miscalculated and assessed $18,641.21 in arrears and ordered him to pay an amount of $335.26 per month towards arrears.”

{¶ 7} L.M., III’s appeal centers around his original September 13, 2002

application to terminate his support obligation. In that application, L.M.,

III argued that since he had become the custodial parent of the minor child,

he should no longer have to pay $352.92 per month in child support.

Although the magistrate denied L.M., III’s application, the record reveals

that the trial court took no action with regards to the magistrate’s decision.

{¶ 8} To the extent that the magistrate’s decisions were effective,

without being adopted by a trial judge, those decisions are interlocutory and

not final appealable orders. See State ex rel. Thompson v. Spon (1998), 83

Ohio St.3d 551, 700 N.E.2d 1281; Bond v. Bond (Dec. 15, 1998), Franklin App. No. 98AP-356, 98AP-0143; McClain v. McClain (Sept. 20), Champaign

App. No. 02CA04, 2002-Ohio-4971. Alternatively, to the extent a trial judge

was required to adopt the magistrate’s decisions to make them effective, the

trial court’s failure to do so renders the magistrate’s decisions interlocutory.

Bond; See, also Civ.R. 53(D)(4)(a) (“A magistrate’s decision is not effective

unless adopted by the court”). In either instance, the magistrate’s decision

is an interlocutory order, not a final appealable order and therefore, subject

to dismissal for lack of jurisdiction. Bond, McClain.

{¶ 9} Given the foregoing, we are required to dismiss the instant

appeal.

It is ordered that appellee recover of appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and KENNETH A. ROCCO, J., CONCUR