In re M.C.

2015 Ohio 3408

• Court: Ohio Court of Appeals
• Decided: August 24, 2015
• Docket: CA2014-12-264
• Status: Published

Opinion

[Cite as In re M.C., 2015-Ohio-3408.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN THE MATTER OF: :

M.C. : CASE NO. CA2014-12-264

: OPINION 8/24/2015 :

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JS2008-1301

Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, for appellant, A.C.

B.W., 109 Hamilton Avenue, Apt. C., Trenton, Ohio 45067, appellee, pro se

PIPER, P.J.

{¶ 1} Appellant, A.C. (Mother), appeals a decision of the Butler County Court of

Common Pleas, Juvenile Division, denying her motion to strike a visitation schedule that was

not agreed upon by herself and appellee, B.W. (Father).

{¶ 2} Mother and Father were not married, but had a child together. Father filed a

motion to modify the visitation he had with the child, and Mother disagreed with the visitation

Father requested. Ultimately, the parties attended mediation and were able to settle the Butler CA2014-12-264

outstanding issues regarding visitation. The parties appeared in front of a juvenile court

magistrate, and notified the court that they had reached an agreement. The parties read

their agreement into the record, and such was then reduced to writing and signed by the

juvenile court as the agreed entry.

{¶ 3} However, subsequently at some unknown juncture, general parenting

guidelines routinely used by the juvenile court, designated as Appendix F, were attached to

the agreed entry. Appendix F contains visitation guidelines, visitation schedules, and holiday

designations establishing each party's rights in a given year. Appendix F is different from the

agreement entered into by the parties in several respects, most importantly being when

Father has a right to visit with the child for extended vacations.

{¶ 4} Father began to exercise extended vacation visitation specific to Appendix F,

rather than the agreement he had mediated and agreed to with Mother. Specifically, Father

kept the child for spring break, even though his agreement with Mother did not permit him to

do so. Father asserted that he was permitted the extra visitation with the child because of

the visitation specified in Appendix F.

{¶ 5} Mother filed a motion for contempt against Father for violating the agreed entry

and for relying on Appendix F. Father then filed a motion for contempt against Mother for her

alleged violations of Appendix F's visitation schedule and her strict reliance on the agreed

entry. A juvenile court magistrate held a hearing on the matter and found that neither party

was in contempt because neither had willfully violated the court's orders, and that there was

confusion regarding the validity of Appendix F being attached to the agreed entry.

{¶ 6} The magistrate recognized that the attachment of Appendix F, and the resulting

differences in visitation parameters, was never requested by the parties, but was rather likely

attached by the court. Even so, the magistrate found that Appendix F had become part of

the juvenile court's entry and was an enforceable provision of the order. -2- Butler CA2014-12-264

{¶ 7} Mother then filed objections to the magistrate's decision, which were overruled

by the juvenile court. Mother also filed a motion to strike Appendix F as well as a Civ.R.

60(B) motion, asking the juvenile court for relief from judgment if Appendix F was to be

considered a part of the juvenile court's entry. The juvenile court denied Mother's motions.

Mother now appeals the juvenile court's decision, raising the following assignment of error.

{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT

REFUSED TO STRIKE APPENDIX F FROM THE PARTIES' AGREED PARENTING PLAN.

{¶ 9} Mother argues in her assignment of error that the juvenile court erred when it

denied her motion to strike Appendix F from the agreed entry.

{¶ 10} According to Civ.R. 60(A), "clerical mistakes in judgments, orders or other parts

of the record and errors therein arising from oversight or omission may be corrected by the

court at any time on its own initiative or on the motion of any party and after such notice, if

any, as the court orders."1 Civ.R. 60(A) applies only to clerical mistakes which involve

"'blunders in execution' and not substantive mistakes where the court changes its mind,

either because it made a legal or factual mistake in making its original determination, or

because, on second thought, it has decided to exercise its discretion in a different manner."

Gould v. Gould, 12th Dist. Butler No. CA2004-01-010, 2005-Ohio-416, ¶ 29. Stated another

way, a clerical mistake is "a mistake or omission, mechanical in nature and apparent on the

1. Mother filed a Civ.R. 60(B) motion for relief from judgment, as well as a motion to strike. However, Mother's motion to strike asked the juvenile court to recognize that an error was made in attaching Appendix F, and to correct that error by striking Appendix F from the agreed entry. While a motion to strike can be used in regard to discovery, pleadings, or matters at trial, motions to strike are not the proper procedural method for correcting a trial court's entry when such contains a clerical error. See Civ.R. 60(A). Also, and unlike Civ.R. 60(B), which has a one year time limit for requests for relief from judgment, Civ.R. 60(A) does not have such a time limit, and corrections can be made "at any time." As such, the juvenile court should have treated Mother's motion to strike as a motion to correct the clerical error pursuant to Civ.R. 60(A). See Jackson v. Jackson, 188 Ohio App.3d 493, 2010-Ohio-3531, ¶ 17 (6th Dist.) (finding that "the name given to the motion is not controlling, but instead the substance, not the caption, determines the operative effect of the motion").

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record which does not involve a legal decision or judgment." Ashburn v. Roth, 12th Dist.

Butler Nos. CA2006-03-054 and CA2006-03-070, 2007-Ohio-2995, ¶ 24.

{¶ 11} After reviewing the record, we find that the attachment of Appendix F to the

parties' agreement and the juvenile court's entry was a clerical error that must be corrected.

The record is patently clear that Mother and Father entered into mediation to resolve their

dispute over visitation, and that the parties reached a complete and inclusive agreement as

to parenting time that was not contingent upon or inclusive of Appendix F. The parties'

agreement resulting from mediation was their comprehensive agreement as to how parenting

time would occur, and what rights each would have in regard to parenting time with the child,

and that agreement was the only one offered to the juvenile court for adoption.

{¶ 12} The complete agreement included Father's weekly parenting time with the child

on Wednesdays as well as weekend visitations. Conversely, Appendix F states that the non-

residential parent shall have visitations on Mondays. Father admitted at the hearing on the

cross-contempt motions that he never attempted visitation with the child on Monday as

permitted by Appendix F, and rather, abided by the terms set forth in his agreed entry with

Mother that he would visit with the child on Wednesdays. The only claim made by Father

was that Appendix F operated to provide him with extended vacations with the child, which

were not afforded him in the agreed entry. However, Father mediated and eventually agreed

to a visitation schedule that did not delineate what specific extended vacations with the child

would occur. Instead, the agreement addressed holidays including Easter, Mother's Day,

Father's Day, July Fourth, Labor Day, Thanksgiving, Christmas, birthdays, and certain Jewish

holidays. Unlike Appendix F's specific designation of vacation rights, the record indicates

that through the agreed entry, Father would request extended vacation with Mother in

advance, and the parties would agree upon such vacation.

{¶ 13} The agreement also addressed transportation, forfeiture of visitation, right of -4- Butler CA2014-12-264

first refusal, and pending issues such as child support and contempt motions. These

provisions are different than Appendix F, and clearly indicate that Mother and Father agreed

to a wholly separate and distinct visitation plan different from the normal parenting guidelines

established by the court through Appendix F.

{¶ 14} The agreement, in its entirety, was read into the record and approved by the

magistrate as the final agreement between the parties. At no time, however, was Appendix F

made a part of the parties' agreement, nor was it even mentioned at the hearing by either

party or the magistrate. Instead, the magistrate instructed Mother's attorney to read the

agreement "into the record so that we make sure that we've got everything on record."

(Emphasis added.) The agreement was read into the record, and Father agreed that the

reading of the agreement was correctly done without ever suggesting that the agreed entry

was in addition to or meant to supplement Appendix F. In fact, and after reading the

agreement into the record, Mother's counsel reiterated that the only other issue that needed

discussion was Father's request to amend the birth certificate and that such issue was being

addressed in probate court.

{¶ 15} The magistrate then addressed that all pending motions were resolved, and

further stated, "what we've done today, just so that both parties are aware, we've read this

into the record. So, this is… this is going to become a court order with respect to what's been

read into the record." The magistrate never stated that Appendix F would also be added for

any reason. Mother's attorney then reduced the parties' agreement to an agreed entry with

no inclusion of or reference to Appendix F, and only the agreed entry was signed by both

parties and the juvenile court.

{¶ 16} For these reasons, the magistrate concluded, "the attachment of 'Appendix F'

was not requested by Mother or her Counsel, nor was it requested by Father, but rather was

attached by the Court without request from either party to address issues not otherwise -5- Butler CA2014-12-264

addressed." While the magistrate, and juvenile court in overruling Mother's objections,

decided that Appendix F became a part of the agreed entry because a court speaks through

its entries and was an enforceable provision, the record clearly indicates that the inclusion of

Appendix F was a clerical mistake that must be corrected by the juvenile court.

{¶ 17} Both the magistrate and juvenile court concluded that Appendix F could have

been attached as a means of addressing issues "not otherwise addressed" in the parties'

agreed entry. However, the record does not support such a finding where the agreed entry

clearly addresses the visitation schedule agreed upon by the parties during their mediation.

In fact, the parties' agreed entry was more specific and complete than Appendix F in that it

provided specifically for Jewish holidays and designated holidays differently than Appendix F.

The parties' agreed entry also specifically addressed transportation issues, the possibility of

forfeiture of parenting time if the parties were late in picking up the child, the right of first

refusal should the child need more than three hours of child care, and that parenting time

could be liberalized or modified by "consent of the parties."2 However, at no time did the

more specific provisions make reference to or address Appendix F in the least, and as

already discussed, no reference to Appendix F was made at the hearings. Therefore, and

because the parties' agreement was more specific and expressly addressed the visitation

issues in full, Appendix F was not necessary to address any further issues and served only to

contradict the agreement the parties actually reached.

{¶ 18} The record is clear that the mistaken or inadvertent attachment of Appendix F

to the agreed entry was clerical rather than substantive, and not a case where the magistrate

or juvenile court had second thoughts or changed the legal decision it had previously made

when it first accepted the agreed entry. Had the magistrate decided to make substantive

2. As previously discussed, when Father wanted extended visitation with the child for vacation, he would request such through Mother.

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modifications to the parties' agreement, such as attaching Appendix F as a gap-filler, it would

have specifically notified the parties of its intention to do so, as stated in its written decision.

According to the magistrate's written decision, "the Magistrate's Decision and Order will be

presented to the Assigned Judge for approval or disapproval. * * * If modified * * * you will

receive notice of any such modification or non-approval." The magistrate never informed the

parties that it was including Appendix F as a gap-filler or gave notice that it was attaching

Appendix F for any reason whatsoever. The fact that the attachment was made without any

notice to the parties further supports our conclusion that such was a clerical error and was

not done by the juvenile court in an attempt to address any issues not already covered by the

agreed entry.

{¶ 19} As such, the attachment of Appendix F was mechanical in nature and, not

involving a legal decision or judgment, it can be corrected through the application of Civ.R.

60(A). For these reasons, Mother's assignment of error is sustained. The cause is

remanded to the juvenile court to apply Civ.R. 60(A) and make corrections to the clerical

error resulting from the inadvertent or mistaken attachment of Appendix F to the parties'

{¶ 20} Judgment reversed, and the cause is remanded for further proceedings

consistent with this opinion.

S. POWELL and HENDRICKSON, JJ., concur.

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