[Cite as In re S.R.L., 2015-Ohio-5227.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102797
IN RE: S.R.L. Minor Child
[Appeal By Mother]
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU-06-101161
BEFORE: Keough, J., Celebrezze, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 14, 2015 ATTORNEY FOR APPELLANT
John V. Heutsche John V. Heutsche Co., L.P.A. 700 West St. Clair Avenue Suite 220 Cleveland, Ohio 44113
GUARDIAN AD LITEM
Mark Witt 6209 Barton Road North Olmsted, Ohio 44070
APPELLEE
T.L. 8 Bedford Road Homer, New York 13077
KATHLEEN ANN KEOUGH, J.: {¶1} Mother appeals from the trial court’s judgment granting Father’s motion to
modify custody and naming him the residential parent and legal custodian of S.R.L., the
parties’ biological, special-needs daughter. We reverse and remand with instructions that
Mother be named the residential parent and legal custodian of S.R.L., and that S.R.L. be
immediately returned to Mother’s custody.
I. Background
{¶2} On August 26, 2010, the trial court adopted the magistrate’s decision
designating Mother as the residential parent and legal custodian of S.R.L., finding that
such designation was in the best interest of the child. Father was granted supervised
visits. In addition, the trial court found Mother to be in contempt of court for failing to
abide by court-ordered visitation, and sentenced her to three days in jail, suspended. The
order advised that Mother would be subject to another contempt finding and a potential
jail sentence should she fail to cooperate with Father’s scheduled visitation.
{¶3} In September 2010, Mother filed a motion to suspend Father’s visitation,
asserting that Father had threatened her, her fiancé, and her father as they stood outside
the courtroom after the August hearing. The magistrate denied the motion.
{¶4} In December 2010, Mother filed a motion to remove the magistrate,
asserting that the magistrate “will not listen to anything I have to say about my case.”
The trial court denied Mother’s motion. {¶5} Subsequently, in February 2011, the parties appeared before the magistrate
for a scheduled hearing to review visitation. At the outset of the hearing, the magistrate
announced that she was going to conduct a purge hearing regarding the August 2010
contempt finding. Counsel objected that neither he nor Mother had received notice that a
purge hearing would take place, but the magistrate insisted the purge hearing would
proceed. The magistrate then refused to take any sworn testimony from Mother regarding
her understanding of the court’s prior order and purge requirements, stating that Mother
knew of her obligations with respect to Father’s visitations with S.R.L. Upon learning
that no visitations had taken place, the magistrate had the courtroom deputies arrest
Mother and immediately transport her to jail.
{¶6} The next day, in light of the lack of notice, lack of opportunity to be heard,
and a magistrate’s lack of authority to incarcerate absent the trial court’s concurrence,
Mother filed objections to the magistrate’s decision. She also filed an emergency motion
to set aside the magistrate’s decision. The trial court did not consider the objections and
motion until after Mother had served her three-day jail time, when it overruled both.
Mother and her counsel then filed an affidavit of disqualification of the trial judge with
the Supreme Court of Ohio, which the Supreme Court subsequently denied.
{¶7} The magistrate conducted case review hearings in June and September
2011, and in November 2011, removed the requirement that Father’s weekly visits be
supervised. Subsequently, on May 21, 2012, the trial court adopted the magistrate’s decision that allocated shared parenting to Mother and Father and designated Mother the
residential parent for school enrollment purposes.
{¶8} Only two days later, Father filed a motion to show cause, requesting a
change of custody and jail time for Mother, because she had allegedly denied him
court-ordered telephone contact with S.R.L. At the show-cause hearing on June 1,
2012, Mother requested a court-appointed attorney;1 the magistrate appointed an attorney
and continued the matter.
{¶9} Prior to the show cause hearing, Mother filed a motion to suspend Father’s
parenting time because he had been arrested on June 9, 2012, in S.R.L.’s presence, for
breaking and entering, vandalism, and aggravated theft from his employer.2 In addition,
Mother asserted that Father had refused to provide her with information regarding his
planned two-week vacation with S.R.L., and repeatedly sent harassing and threatening
texts to her, in violation of the court’s shared-parenting order. Mother also asserted that
Father repeatedly threatened her “with using [the magistrate] to punish [her] because he
believes that [the magistrate] will adhere to his wishes.”
{¶10} On July 30, 2012, Father filed several motions to show cause alleging
various violations of the shared-parenting order by Mother. Father again requested a
Prior counsel had withdrawn in February 2012. 1
The record does not reflect the disposition of these charges. At the hearing 2
on his motion to modify custody, Father asserted that the charges had been dismissed. change of custody and jail time for Mother. He filed another motion to show cause in
September.
{¶11} In November 2012, after a hearing on Father’s motions, the magistrate
found Mother in contempt for failing to send adequate clothing for S.R.L.’s two-week trip
in July 2012 with Father, sentenced her to three days in jail, “suspended as long as there
are no further violations of court orders,” and fined her $150. The magistrate denied
Father’s other motions for contempt. The trial court subsequently approved the
magistrate’s decision.
{¶12} In December 2012, Father filed a motion to show cause alleging that he had
not received a court-ordered telephone call from S.R.L. on Christmas Day.
{¶13} In January 2013, after a hearing, the magistrate denied Mother’s motion to
modify or suspend visitation, finding “no evidence of a change in circumstances to
support a modification of the prior agreement and order.” The magistrate ordered
Father’s motion to show cause held in abeyance.
{¶14} On September 3, 2013, Father filed two motions to show cause, alleging that
Mother was not giving him adequate information about S.R.L.’s doctors’ appointments,
and had failed to send adequate clothing and medication for S.R.L.’s two-week vacation
with Father in August 2013. Mother subsequently filed her own motions to show cause
and a motion to modify the parenting plan. Father then filed a motion to modify custody
because he was moving to New York to live with his father after losing his job and being evicted from his home. On September 30, 2013, the magistrate denied Mother’s motion
to show cause and the parties’ motions to modify the parenting plan, finding “no change
in circumstances with the child.” The magistrate set Father’s motions to show cause for
hearing on November 19, 2013.
{¶15} At the hearing, the magistrate found that Mother had not sent adequate
clothing and medication with S.R.L. for her two-week vacation with Father in August
2013, in violation of the shared-parenting order. The magistrate found that Mother had
therefore failed to purge the finding of contempt made on November 19, 2012, and
ordered the three-day jail sentence into immediate effect. The magistrate also found
Mother in contempt for not providing adequate clothing and medication, and sentenced
her to seven days in jail. Although a magistrate has no authority to order immediate
incarceration absent the trial court’s concurrence, the magistrate again ordered Mother
taken into custody and the sentence to commence execution immediately. Father then
made an oral motion for emergency custody of S.R.L., which the magistrate granted,
allowing Father to take S.R.L. to New York. On the same day, Father also filed a motion
for full custody of S.R.L., asserting “a change of circumstances” because Mother had
been jailed several times and had allegedly continued to violate the shared-parenting
order. The matter was set for pretrial in January 2014.
{¶16} On December 27, 2013, Mother filed a motion for relief from the judgment
of temporary custody to Father, asserting that she had served her ten-day jail sentence and hence there was no longer any basis for the award of temporary custody to Father. The
trial court denied the motion without explanation.
{¶17} At the January 6, 2014 pretrial, the magistrate set Father’s motion to modify
custody for trial in March. Although S.R.L. had lived with Mother until November 19,
2013, when the magistrate ordered Mother immediately jailed, the magistrate ordered that
Mother could only have supervised visitation with S.R.L. every other weekend in New
York. At the subsequent trial, which finally took place on October 21, 2014, the evidence
demonstrated that the GAL and Mother’s counsel were unable to find court-approved
sites in New York that could facilitate supervised visitation with Mother and S.R.L., and,
thus, Mother did not see S.R.L. for eight months — from November 19, 2013, until July
2, 2014 — when she visited with S.R.L. immediately after the magistrate’s in camera
interview of S.R.L. That day, the magistrate finally granted Mother’s motion for
unsupervised visitation, which had been filed on March 10, 2014, four months earlier, and
ordered that Mother could have unsupervised visits with S.R.L. for five hours every other
Saturday, alternating between New York and Ohio.
{¶18} Prior to trial on Father’s motion for custody, the magistrate denied Mother’s
motion to compel production of documents from Father and for letters rogatory to the
New York courts to issue subpoenas for the out-of-state depositions of various
individuals, including Father, “for no good cause shown.” The magistrate granted Mother’s motion for a referral to the court’s Diagnostic Clinic for psychological
examinations of Mother, Father, and S.R.L.
{¶19} Immediately prior to the commencement of trial on October 22, 2014,
Mother orally moved to dismiss Father’s motion because Father had not filed a parenting
affidavit as required by R.C. 3127.01 et seq. The magistrate denied the motion. Mother
next moved to exclude any evidence on behalf of Father because Father had not filed a
witness list, as ordered by the court. Although the magistrate’s subsequent decision and
findings of fact state that the motion was denied as moot because Father stated that he did
not intend to call any witnesses, the transcript reflects that the magistrate ruled that Father
was not required to file a witness list because he was a party to the proceedings.3
{¶20} Over Mother’s objection, Father read his opening statement. Father then
attempted to introduce the report prepared by Dr. Waltham from the court’s Diagnostic
Clinic; the magistrate told him he could not offer the report into evidence because he had
not subpoenaed the doctor. Father then attempted to introduce reports from S.R.L.’s
New York doctors; upon Mother’s objections that the reports were hearsay, the magistrate
informed Father that the documents would not be admitted. The magistrate then asked
Father if there was “anything further?” — and Father responded “No, ma’am.”
3 The magistrate’s January 10, 2014 pretrial order stated that “The parties shall file his/her Witness List and Evidence List a minimum of fourteen (14) days prior to the trial date. Failure to do so shall result in the parties’ witnesses being excluded from testifying.” {¶21} Mother then moved for dismissal because Father had not presented any
evidence before resting his case. The magistrate denied the motion.
{¶22} Mother then called Mark Witt, S.R.L.’s guardian ad litem, to testify. Witt
testified that he had prepared two reports for the court, one in March 2014, and another in
October 2014. Witt testified that during his investigation, he had reviewed the
psychological evaluations prepared by the court’s Diagnostic Clinic, conducted a home
visit with Father, and reviewed S.R.L.’s school records and various medical reports.
{¶23} Witt testified that he had also reviewed Father’s criminal record, and he
confirmed that Father had been charged for a domestic violence incident against Mother
that occurred in August 2013. Witt acknowledged that on August 21, 2013, the court
granted Mother, her husband, and son a civil protection order as a result of this incident,
and confirmed that there had been other incidents of domestic violence between Father
and Mother. Witt testified further that, despite Father’s assertion in his opening
statement that he would not have a criminal record but for his interactions with Mother,
he had reviewed Father’s criminal history and determined that the majority of Father’s
convictions for domestic violence did not involve Mother.
{¶24} Witt also confirmed that Dr. Waltham’s report found that Father placed less
emphasis on caring for S.R.L.’s special needs than Mother did, and that Mother was a
devoted, responsible, and loving parent who would adequately care for S.R.L.’s special
needs. Similarly, Witt confirmed that Dr. Waltham’s report concluded that Father has a history of antisocial behavior and a problem dealing with authority figures, and that
Father would likely not abide by visitation plans if he found them inconvenient or if he
were angry. Witt testified that his investigation revealed that Father had had a “falling
out” with his father after he moved to New York and was no longer living with him, and
with his aunt, who as a result no longer wished to care for S.R.L. Witt also confirmed
that Father was in arrears of over $10,000 in child support to Mother.
{¶25} Witt confirmed that his report did not make any recommendation regarding
what allocation of custody would be in S.R.L.’s best interest, although he testified that he
would not recommend shared parenting because Mother and Father are so antagonistic
toward each other. He testified that his recommendation that S.R.L. remain in New York
with Father if Father demonstrated a change in circumstances was based only on
maintaining stability for S.R.L., although he believed that S.R.L. would have no trouble
adapting to living again with Mother and all of her needs could be adequately met in
Ohio. Witt testified that it would be best for S.R.L. if her parents were in close
proximity to each other, and that it would be easier for Father to move back to Ohio than
for Mother to move to New York.
{¶26} Mother testified that she has been married for four years, and that S.R.L. has
a “very close” relationship with Mother’s son from a previous relationship. On
cross-examination by the GAL, Mother admitted that she and Father do not get along, although she testified that she could put aside her negative feelings to make shared
parenting work.
{¶27} On October 23, 2014, the day after trial, the magistrate issued her decision
granting Father’s motion to modify custody and naming him the residential parent. The
decision made no finding that there had been a change in circumstances sufficient for
modification of custody. Rather, the decision stated only that “the court heard evidence
and testimony,” (although it did not state what evidence it heard), cited the applicable
statutory factors relevant to determining the best interest of a child when making a
custody allocation, and found that the GAL’s report and testimony supported a
modification of custody.
{¶28} On October 28, 2014, Mother filed preliminary objections to the
magistrate’s decision, a request for transcript, and a motion to supplement her objections
after the transcript was received. On November 7, 2014, and again on November 12,
2014, the trial court entered judgment entries approving and adopting the magistrate’s
decision. The trial court’s judgments made no reference to Mother’s pending objections.
{¶29} On November 17, 2014, Mother filed a motion for relief from judgment of
the trial court’s judgment adopting the magistrate’s decision, pointing out that the trial
court had approved the magistrate’s decision even though Mother’s objections were
pending, and that Mother had requested an opportunity to supplement her original
objections after the transcript was prepared. That same day, the trial court issued an entry overruling Mother’s preliminary objections and approving the magistrate’s decision.
The trial court’s judgment indicated that it was based “upon review of the court file,”
although no transcript had yet been prepared. Two days later, the trial court granted
Mother’s request for a transcript.
{¶30} On November 20, 2014, the magistrate issued findings of fact and
conclusions of law. Although Father presented no evidence at trial, the magistrate’s
decision stated that “Father provided evidence” that S.R.L. was doing well medically and
in school. In addition, although the report was never introduced as evidence, the
magistrate’s findings of fact cited extensively from Dr. Waltham’s report. The trial court
subsequently approved and adopted the magistrate’s findings of fact and conclusions of
law.
{¶31} On November 25, 2014, Mother filed a motion for relief from judgment of
the trial court’s November 17, 2014 judgment approving and adopting the magistrate’s
decision, again pointing out that the trial court had approved the decision even though
Mother’s objections were pending, and that Mother had not yet had an opportunity to file
objections buttressed with the transcript. On December 15, 2014, the trial court denied
this motion and Mother’s earlier motion for relief from judgment filed on November 17,
2014.
{¶32} On January 29, 2015, Mother filed her supplemental objections to the
magistrate’s decision. To support her objections, Mother filed transcripts of the November 19, 2013 show cause hearing, the October 22, 2014 hearing on Father’s motion
to modify custody, and the October 23, 2014 hearing at which the magistrate announced
her decision granting Father full custody of S.R.L.
{¶33} On February 15, 2015, Mother filed a motion for a ruling on her
supplemental objections to the magistrate’s decision. The trial court denied the motion,
finding it to be “moot.” This appeal followed.
II. Analysis
A. Standard of Review
{¶34} We begin by noting that a trial court has broad discretion in custody
proceedings. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1996),
paragraph one of the syllabus. The court’s discretion is not unlimited, however, and a
decision will be overturned if the trial court abused that discretion. Miller v. Miller, 37
Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). A trial court will be found to have abused its
discretion when its decision is contrary to law, unreasonable, not supported by the
evidence, or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932
N.E.2d 345, ¶ 17-18 (2d Dist.), citing Black’s Law Dictionary 11 (8 Ed.Rev.2004).
B. Motion to Dismiss {¶35} In her first assignment of error, Mother contends that the trial court abused
its discretion in approving the magistrate’s decision because the magistrate erroneously
denied her motion to dismiss. We agree.
{¶36} At no time during the proceeding was Father administered an oath. He was
not under oath when he read his opening statement. He did not testify during the
proceeding, nor did he call any witnesses or offer any documentary evidence. After
reading his opening statement, Father concluded his case. Mother then moved for
dismissal because Father had not presented any evidence. The trial should have ended at
that point.
{¶37} It is well settled that opening statements are not evidence. Parrish v. Jones,
138 Ohio St.3d 23, 31, 2013-Ohio-5224, 3 N.E.3d 155; State v. Frazier, 73 Ohio St.3d
323, 338, 652 N.E.2d 1000 (1995). They are merely previews of a party’s claims and are
designed to help the factfinder follow the evidence as it is presented later in the trial.
Parrish, at id.
{¶38} Having offered no evidence whatsoever, much less any evidence of a
change in circumstances, as required to prevail on a motion to modify custody, Father’s
motion should have been immediately dismissed. The magistrate erred in not doing so,
and the trial court abused its discretion in approving and adopting the magistrate’s
decision that denied Mother’s motion to dismiss. {¶39} The transcript reflects that Mother made two motions to dismiss at the
hearing: the first for Father’s failure to file a parenting affidavit, and the second for
Father’s failure to present any evidence in support of his motion. Notably, the
magistrate’s decision references only Mother’s first motion to dismiss; it does not
mention that Mother moved to dismiss for Father’s failure to present any evidence.
Likewise, the magistrate’s decision does not mention that Mother objected to Father’s
introduction of documents as hearsay because he called no witnesses to authenticate the
documents, and that the magistrate denied admission of the exhibits. Nevertheless, the
transcript of the hearing clearly reflects these rulings. It also clearly reflects that Father
presented no evidence whatsoever to support his motion, that Mother moved to dismiss
for Father’s failure to present any evidence, and that the magistrate denied the motion.
{¶40} Just as troubling, the magistrate’s decision with findings of fact and
conclusions of law clearly reflects that the magistrate considered Father’s opening
statement to be evidence. The decision states that “Father provided evidence” regarding
S.R.L.’s schooling arrangements, a school award for honesty received by S.R.L., and a
reduction in the amount of medication she takes. A review of the transcript demonstrates
that this alleged “evidence” came directly, and only, from Father’s opening statement.
{¶41} Father’s opening statement was not evidence. The hearing should have
ended immediately upon the Father’s failure to present any evidence whatsoever to
support his motion to modify custody. Accordingly, the trial court abused its discretion in approving and adopting the magistrate’s decision. The first assignment of error is
sustained.
C. No Evidence Establishing the Requisite “Change of Circumstances”
{¶42} In her second assignment of error, Mother contends that the trial court erred
in approving and adopting the magistrate’s decision because there was no evidence of a
change in circumstances since the last parenting order. We agree.
{¶43} The modification of parental rights and responsibilities is governed by R.C.
3109.04(E)(1)(a), which states:
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
***
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
{¶44} In short, modification of parental rights can occur only if (1) there was a
change in circumstances since the last decree; (2) a modification is deemed to be in the
child’s best interest; and (3) the harm likely to be caused by the change is outweighed by
the advantages of the change in environment to the child. {¶45} Magistrates do not have the authority to render final judgments; rather the
trial court is responsible to review and verify the work of the magistrate. Tulley v.
Tulley, 11th Dist. Portage No. 2000-P-0044, 2001 Ohio App. LEXIS 4611, *27 (Oct. 12,
2001). A magistrate’s decision is not binding until the trial court adopts the decision.
Id.
{¶46} Here, the magistrate journalized her decision granting Father’s motion to
modify custody on October 23, 2014. The decision noted that at the hearing, the
magistrate denied Mother’s motion to dismiss and motion in limine. The decision stated
that the court then “explained legal rights, procedures, and possible effect on parental
rights, whereupon, the court heard evidence and testimony,” but the decision did not set
forth any evidence or testimony that was adduced at the hearing. The decision noted that
the court then considered “the following factors,” and listed the R.C. 3109.04 factors that
a court should consider when making the best interest determination. The decision then
stated that the magistrate had reviewed the GAL’s report, and that his testimony and
recommendation supported a modification of custody as being in the child’s best interest.
The decision did not state what the GAL’s recommendation or testimony were. The
decision then stated that “upon due consideration,” the magistrate found that it was in
S.R.L.’s best interest that Father be designated as her legal custodian.
{¶47} Mother filed preliminary objections to the magistrate’s decision on October
28, 2014, as well as a motion for a transcript and an opportunity to supplement her objections when the transcript was prepared. On November 7, 2014, the trial court
approved and adopted the magistrate’s decision, noting that it did so “upon an
independent review of the matter.” Ten days later, the trial court overruled Mother’s
objections and again approved the magistrate’s decision, noting that it did so “upon
review of the court file.”
{¶48} Significantly, however, the trial court approved the magistrate’s decision,
and subsequently overruled Mother’s objections to the decision, before a transcript of the
hearing had been prepared, and before the magistrate had issued any findings of fact and
conclusions of law. Likewise, the trial court approved and adopted the magistrate’s
decision even though the decision cited no evidence whatsoever from the hearing, and no
facts from the evidence presented by Mother and the GAL demonstrating that there had
been a change in circumstances, that a change of custody was in S.R.L.’s best interest,
and that the harm likely caused by the change was outweighed by the advantages of the
change.
{¶49} When ruling upon objections to a magistrate’s decision, a trial court is
required to make an independent review of the case. Bodell v. Brown, 8th Dist.
Cuyahoga No. 101632, 2015-Ohio-526, ¶ 13. The trial court’s independent review
“requires the trial court to ‘conduct a de novo review of the facts and an independent
analysis of the issues to reach its own conclusions about the issues in the case.’” Id. at ¶ 14, citing In re A.S., 8th Dist. Cuyahoga No. 101339, 2014-Ohio-4936, ¶ 5, quoting
Radford v. Radford, 8th Dist. Cuyahoga Nos. 96267 and 96445, 2011-Ohio-6263, ¶ 13.
{¶50} Here, the magistrate’s decision is devoid of any evidence demonstrating a
change of circumstances. In fact, it is devoid of anything upon which the trial court
could have made an independent review of the matter. Accordingly, the trial court
abused its discretion in overruling Mother’s objections and affirming and adopting the
{¶51} Further, although not argued by Mother, we note that the trial court likewise
erred in adopting and approving the magistrate’s findings of fact and conclusions of law.
In the decision announcing the findings of fact and conclusions of law, the magistrate
“found” that on November 19, 2013, Mother was sentenced to jail for ten days for failing
to purge a contempt finding by the magistrate, and for another contempt finding that day,
and that she had previously been jailed for three days. The decision failed to
acknowledge, however, that on both instances, the magistrate, in violation of Mother’s
due process rights, ordered Mother taken into custody and transported to jail immediately
upon the magistrate’s oral order, without waiting for the trial court’s journalized order
adopting her decision.
{¶52} Moreover, the magistrate’s decision with findings of fact and conclusions of
law states that Father did not present any witnesses, yet it goes on to “find” that “Father
presented evidence” that S.R.L. was doing well in school, is in mainstreamed classes in the morning and special education classes in the afternoon, received a school award for
honesty, and doing well medically. It is elementary that Father could not have presented
evidence, either testimonial or documentary, unless he called sworn witnesses to testify.
{¶53} Furthermore, as discussed below in our analysis of Mother’s third
assignment of error, although Dr. Waltham’s report was not admitted into evidence and
Dr. Waltham was not called to testify, the magistrate’s findings of fact set forth the
specifics of Dr. Waltham’s report in great detail and, in fact, states that it relied on the
report in finding a change of circumstances. Thus, it is apparent that the magistrate
considered matters outside the evidence in reaching her decision, in violation of Mother’s
due process rights.
{¶54} Finally, because Father presented no evidence, any evidence regarding a
change in circumstances would have had to have come from Mother or the GAL at trial.
Although the magistrate’s conclusions of law find that there was a change in
circumstances and that it was in S.R.L.’s best interest that Father be designated the
residential parent and legal custodian, the findings of fact are devoid of any evidence
from Mother or the GAL to support the magistrate’s conclusion. The trial court therefore
abused its discretion in adopting and approving the magistrate’s decision with findings of
fact and conclusions of law. The second assignment of error is sustained.
D. Dr. Waltham’s Report {¶55} In her third assignment of error, Mother contends that the trial court erred in
approving the magistrate’s decision because the magistrate impermissibly considered
matters outside the evidence in reaching her decision, in violation of her due process
rights. We agree.
{¶56} Dr. Waltham issued a report that was not favorable to either Father or
Mother, and concluded that the doctor could not recommend either Father or Mother to
have custody of S.R.L. No one called Dr. Waltham to testify at trial, however. And
although questions were posed to the GAL regarding portions of the report, no one
offered Dr. Waltham’s report into evidence. In fact, when Father tried to introduce the
report, the magistrate properly told him that the report could not be admitted because he
had not called Dr. Waltham to testify.
{¶57} Nevertheless, it is apparent that the magistrate reviewed Dr. Waltham’s
report and relied upon it in making her decision. The magistrate’s decision with findings
of fact and conclusions of law sets forth the findings of Dr. Waltham’s report in great
detail. The decision repeatedly states that “the report finds,” “the doctor finds,” “the
report opines,” and “the report states” and then sets forth the doctor’s findings and
conclusions about Mother and Father’s fitness to parent S.R.L. Furthermore, the
decision acknowledges that the magistrate relied on the report in reaching her decision.
It states that “[b]ased upon the testimony and evidence presented at trial, including but not limited to the report from the court’s Diagnostic Clinic * * * the court finds there has
been a change in the circumstances of the child * * *.” (Emphasis added.)
{¶58} Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Hearsay is inadmissible unless it falls within an exception
provided by the rules of evidence. Evid.R. 802. Here, because Dr. Waltham did not
testify about his report, the contents of the report were inadmissible hearsay that the
magistrate should not have considered.
{¶59} Despite the magistrate’s apparent belief otherwise, the mere fact that the
court ordered the psychological examinations does not make the resultant reports ipso
facto admissible. R.C. 3109.04(C) allows the court to order psychological examinations
of the parents and child, and provides that the reports are to be made available to either
the parent or parent’s counsel prior to trial. Nevertheless, if one of the parties wishes to
offer a report as evidence, R.C. 3109.04 does not exempt that party from satisfying the
requirements of the rules of evidence. See State v. Chapin, 67 Ohio St.2d 437, 444, 424
N.E.2d 317 (1981).
{¶60} Dr. Waltham’s report was not admitted into evidence, and he did not testify
about his report. Accordingly, the report was inadmissible hearsay, and the magistrate
improperly considered the report in rendering her decision. Because the magistrate
considered matters outside of the evidence in rendering her decision, in violation of Mother’s due process rights, the trial court abused its discretion in approving and
adopting the magistrate’s decision. The third assignment of error is sustained.
E. Trial Court Judgment Denying Supplemental Objections as Moot
{¶61} In her fourth assignment of error, Mother asserts that the trial court erred in
approving the magistrate’s decision before allowing her leave to file supplemental
objections and the transcript of the proceedings. She contends that the trial court
compounded its error by then denying her motion for a ruling on her supplemental
objections as moot.
{¶62} In light of our resolution of Mother’s other assignments of error, we find
this assignment of error moot, and therefore we need not consider it. See App.R.
12(A)(1)(c).
F. Conclusion
{¶63} Our review of the record demonstrates that the magistrate awarded full
custody to Father even though there was no evidence to support her decision, and that she
considered matters outside the evidence in reaching her decision. Accordingly, the trial
court abused its discretion in affirming and approving the magistrate’s decision. We
reverse the trial court’s judgment and remand with instructions that Mother be named the
residential parent and legal custodian of S.R.L. and that S.R.L. be immediately returned to
Mother’s custody.
{¶64} Reversed; remanded with instructions. It is, therefore, considered that said appellant recover of said appellee her costs
herein.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., A.J., CONCURS; MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY