Krzyzak v. Krzyzak

2017 Ohio 9276

• Court: Ohio Court of Appeals
• Decided: December 22, 2017
• Docket: 17 CAF 06 0038
• Status: Published

Opinion

[Cite as Krzyzak v. Krzyzak, 2017-Ohio-9276.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

WILLIAM KRZYZAK JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 17 CAF 06 0038 JAMIE KRZYZAK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 15020322AD

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 22, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM KRZYZAK JAMIE KRZYZAK PRO SE PRO SE 809 South Sandusky Street 316 Gelder Drive Tiffin, Ohio 44883 Delaware, Ohio 43015 Delaware County, Case No. 17 CAF 06 0038 2

Wise, J.

{¶1} Appellant Jamie Krzyzak appeals from a post-decree decision by the

Delaware County Court of Common Pleas, Domestic Relations Division, which re-

allocated parental rights in favor of Appellee William Krzyzak, her former husband. The

relevant facts leading to this appeal are as follows.

{¶2} Appellant Jamie and Appellee William were married in March 2002 in

Lancaster, Ohio. Three daughters were born of the marriage: T.K. (born in 2002), K.K.

(born in 2004), and C.K. (born in 2009).

{¶3} The family thereafter moved to West Virginia and then to Virginia. In early

2014, appellee moved to Tiffin, Ohio (in Seneca County), based on a job transfer. In June

2014, appellant and the three children at issue moved to Delaware County, Ohio.

{¶4} The parties’ marriage was terminated on December 17, 2014 via a divorce

decree in Culpeper County, Virginia, issued after both parties had moved from Virginia

and were again residing in Ohio. The Virginia decree incorporated a settlement

agreement signed in January 2014, which inter alia stated that the parties had agreed to

“have joint legal custody of the minor children ***,” under one of four geographical

“scenarios.” Pursuant to the agreement, in pertinent part, appellant was to be the

residential parent for school purposes, and appellee was to have parenting time for the

majority of the summer months and three weekends a month during the school year. This

was under “Scenario Three,” i.e., both parents in Ohio, but in different school districts.

{¶5} On February 18, 2015, appellant, with the assistance of counsel, filed a

petition in the Court of Common Pleas, Delaware County, Ohio (hereinafter “trial court”) Delaware County, Case No. 17 CAF 06 0038 3

to register the Virginia decree, as well as a motion for reallocation of parental rights,

asking to be named the residential parent and legal custodian of the children.

{¶6} On May 15, 2015, appellee, with the assistance of counsel, likewise filed a

motion in the trial court for reallocation of parental rights. On or about May 29, 2015, the

magistrate appointed Attorney Jodelle Stranges as guardian ad litem (“GAL”) for the

children.

{¶7} Hearings were conducted for purposes of interim orders on July 31, August

12, August 24, and September 23, 2015.

{¶8} On September 25, 2015, the aforesaid guardian ad litem (“GAL”) filed an

emergency custody motion, alleging abuse of K.K. by appellant and seeking removal of

said child. The emergency motion was granted by the trial court on the same day.

{¶9} On October 5, 2015, appellant filed a motion for the removal of the GAL and

recusal of the magistrate, alleging ex-parte communication occurring on the evening

immediately prior to the filing of the emergency custody motion. Both motions were

subsequently denied.

{¶10} The matter of custody came on for an evidentiary hearing before a domestic

relations magistrate commencing on February 22, 2016. Both parties appeared with

counsel, along with the guardian ad litem. Additional hearings were conducted thereafter,

terminating with an in camera interview with the children conducted on March 11, 2016.

{¶11} On August 3, 2016, the magistrate issued a lengthy decision ultimately

naming appellee as the legal custodian and residential parent of all three children. The

magistrate also issued contempt findings. Delaware County, Case No. 17 CAF 06 0038 4

{¶12} On August 11, 2016, appellant, via counsel, filed objections to the decision

of the magistrate. Supplemental objections were filed with leave of the trial court on

December 30, 2016.

{¶13} On June 1, 2017, the trial court issued a judgment entry approving and

adopting the decision of the magistrate.1

{¶14} Appellant filed a pro se notice of appeal on June 16, 2017. She herein raises

the following five Assignments of Error:

{¶15} “I. THE TRIAL COURT ERRED BY ERRONEOUSLY FINDING THAT A

CHANGE OF CIRCUMSTANCES HAS OCCURRED IN THIS MATTER AND THAT A

MODIFICATION OF THE PREVIOUS ORDER IS IN THE CHILDREN'S BEST

INTEREST.

{¶16} “II. THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION AS THE

COURT'S RULING WAS NOT CONSISTENT WITH [THE] MANIFEST WEIGHT OF THE

EVIDENCE AS GOVERNED BY O.R.C. 3109.04.

{¶17} “III. THE TRIAL COURT ERRED BY NOT AFFORDING THE DEFENDANT

PROCEDURAL DUE PROCESS OF LAW AS IT RELATES TO ALLEGATIONS OF

ABUSE MADE OF HER REGARDING HER MINOR CHILD, [K.K.].

{¶18} “IV. THE TRIAL COURT ERRED BY CONSIDERING THE

RECOMMENDATION OF THE GUARDIAN AD LITEM AS A BASIS FOR ITS DECISION

EVEN THOUGH THE GUARDIAN AD LITEM DID NOT SUBMIT A WRITTEN GAL

1 Appellant has failed to include or attach with her brief a copy of the judgment entry under appeal and/or a copy of the underlying magistrate’s decision. See Loc.App.R. 9(A). We have nonetheless reviewed these original documents in the record. In addition, appellant has exceeded the page limitation set forth in Loc.App.R. 9(B). Delaware County, Case No. 17 CAF 06 0038 5

REPORT AS REQUIRED VIA O.R.C. 3109.04(C) AND RULE OF SUPERINTENDENCE

48(F)(2).

{¶19} “V. THE TRIAL COURT ERRED BY ADMITTING PLAINTIFF'S EVIDENCE

IN VIOLATION OF RULES OF EVIDENCE 901(A).”

I.

{¶20} In her First Assignment of Error, appellant contends the trial court erred or

abused its discretion under the “change in circumstances” statutory requirements in its

reallocation of parental rights and responsibilities concerning T.K., K.K., and C.K. We

disagree.

{¶21} R.C. 3109.04(E)(1)(a) states in pertinent part as follows: “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. ***.” (Emphasis added).

{¶22} In R.C. 3109.04(E)(1)(a), the General Assembly has created a rebuttable

presumption that retaining the residential parent designated by the prior decree is in the

child's best interest. Combes v. Combes, 5th Dist. Morrow No. 14CA007, 2015-Ohio-584,

¶ 20, citing Meyer v. Anderson, 2nd Dist. Miami No. 96CA32, 1997 WL 189383.

{¶23} Furthermore, R.C. 3109.04(E)(2)(c) gives the court authority to terminate

certain shared parenting plans upon the request of one or both of the parents or when it

determines that shared parenting is no longer in the child or children's best interest. Delaware County, Case No. 17 CAF 06 0038 6

{¶24} Although there is not unanimity among the various appellate districts in Ohio

on the issue, this Court has taken the position that a trial court must consider the threshold

question of “change of circumstances,” as well as “best interest,” in deciding a shared

parenting termination issue. See, e.g., Brocklehurst v. Duncan, 5th Dist. Muskingum No.

CT10–0026, 2010–Ohio–5978, ¶ 19; Oliver v. Arras, 5th Dist. Tuscarawas No. 2001 AP

11 0105, 2002–Ohio–1590. Furthermore, the General Assembly has set forth a

broadened criterion for change in circumstances where the order being considered for full

modification is a shared parenting arrangement. “R.C. 3109.04(E)(1)(a) plainly requires a

change in circumstances regarding ‘the child, the child's residential parent, or either of

the parents subject to a shared parenting decree.’” Matter of B.H.H., 12th Dist. Clermont

No. CA2016-10-069, 2017-Ohio-8359, ¶ 19 (emphasis sic). We have also indicated a trial

court's determination of parental “ongoing and unresolved issues with communication”

may constitute a change of circumstances for termination of a shared parenting order.

Murphy v. Murphy, 5th Dist. Tuscarawas No. 2014 AP 01 0002, 2014–Ohio–4020, ¶ 22.

{¶25} One obvious change factor in the case sub judice was that both parents had

moved back to Ohio from Virginia. In Stein v. Anderson, 5th Dist. Tuscarawas No. 2009

AP 08 0042, 2010–Ohio–18, this Court clearly stated as follows regarding parental

changes of residence: “[W]hether intrastate or out-of-state, we think the preferred general

rule is that a relocation, by itself, is not sufficient to be considered a change of

circumstances, but it is a factor in such a determination.” Id. at ¶ 13, citing Green v. Green,

11th Dist. Lake No. 96–L–145, 1998 WL 258434. In this instance, the dual return from

Virginia and the present geographic gap within Ohio (Tiffin versus Delaware) were

accompanied by several other factors, all set forth in the magistrate’s decision, approved Delaware County, Case No. 17 CAF 06 0038 7

by the trial court. One of these was the parties’ continued “antagonistic relationship” and

“battle of wills,” accompanied by an ongoing civil action regarding marital property division

in the Virginia divorce. See Murphy, supra. Furthermore, there was an emergency

custody order transferring custody of K.K. to appellee on September 25, 2015, tied into

“allegations of negative physical interaction” between K.K. and appellant. The magistrate

also concluded that C.K. had been struggling academically and that T.K. had “acted out

in a campaign to cause strife in [appellee’s] home.” See Magistrate’s Decision at 48-49.

{¶26} Upon review, we find the termination of the parties’ “joint legal custody”

(which we find equates to shared parenting in Ohio), and the reallocation of parental rights

and responsibilities in favor of appellee in this matter was not unreasonable, arbitrary, or

unconscionable in regard to the “change in circumstances” requirements of R.C.

3109.04(E)(1)(a).

{¶27} Appellant’s First Assignment of Error is overruled.

II.

{¶28} In her Second Assignment of Error, appellant contends the trial court’s

reallocation of parental rights and responsibilities in favor of appellee, particularly as to

the statutory “best interest” requirements, was against the manifest weight of the

evidence. We disagree.

{¶29} On appeal, our standard of review in assessing the disposition of child

custody matters is that of abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71,

73–74. In order to find an abuse of that discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Delaware County, Case No. 17 CAF 06 0038 8

Furthermore, because custody issues are some of the most difficult and agonizing

decisions a trial judge must make, he or she must have wide latitude in considering all

the evidence. Girdlestone v. Girdlestone, 5th Dist. Stark No. 2016 CA 00019, 2016–Ohio–

8073, ¶ 12, citing Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159.

Similarly, when making its determinations in custody or visitation cases, the trial court, as

the trier of fact, must be given wide latitude to consider all issues. Heckel v. Heckel, 12th

Dist. Butler No. CA99–12–214, 2000 WL 1279171.

{¶30} Furthermore, as an appellate court reviewing evidence in custody matters,

we do not function as fact finders; we neither weigh the evidence nor judge the credibility

of witnesses. Our role is to determine whether there is relevant, competent and credible

evidence upon which the fact finder could base his or her judgment. See Dinger v. Dinger,

5th Dist. Stark No. 2001CA00039, 2001–Ohio–1386. Ultimately, parental rights and

responsibilities are to be allocated based upon the paramount consideration of the best

interest of the child. Trent v. Trent, 12th Dist. Preble No. CA 98–09–014, 1999 WL 298073.

{¶31} R.C. 3109.04(F)(1) states as follows:

In determining the best interest of a child pursuant to this section,

whether on an original decree allocating parental rights and responsibilities

for the care of children or a modification of a decree allocating those rights

and responsibilities, the court shall consider all relevant factors, including,

but not limited to:

(a) The wishes of the child's parents regarding the child's care;

(b) If the court has interviewed the child in chambers pursuant to

division (B) of this section regarding the child's wishes and concerns as to Delaware County, Case No. 17 CAF 06 0038 9

the allocation of parental rights and responsibilities concerning the child, the

wishes and concerns of the child, as expressed to the court;

(c) The child's interaction and interrelationship with the child's

parents, siblings, and any other person who may significantly affect the

child's best interest;

(d) The child's adjustment to the child's home, school, and

community;

(e) The mental and physical health of all persons involved in the

situation;

(f) The parent more likely to honor and facilitate court-approved

parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support

payments, including all arrearages, that are required of that parent pursuant

to a child support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either

parent previously has been convicted of or pleaded guilty to any criminal

offense involving any act that resulted in a child being an abused child or a

neglected child; whether either parent, in a case in which a child has been

adjudicated an abused child or a neglected child, previously has been

determined to be the perpetrator of the abusive or neglectful act that is the

basis of an adjudication; whether either parent or any member of the

household of either parent previously has been convicted of or pleaded

guilty to a violation of section 2919.25 of the Revised Code or a sexually Delaware County, Case No. 17 CAF 06 0038 10

oriented offense involving a victim who at the time of the commission of the

offense was a member of the family or household that is the subject of the

current proceeding; whether either parent or any member of the household

of either parent previously has been convicted of or pleaded guilty to any

offense involving a victim who at the time of the commission of the offense

was a member of the family or household that is the subject of the current

proceeding and caused physical harm to the victim in the commission of the

offense; and whether there is reason to believe that either parent has acted

in a manner resulting in a child being an abused child or a neglected child;

(i) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other

parent's right to parenting time in accordance with an order of the court;

(j) Whether either parent has established a residence, or is planning

to establish a residence, outside this state.

{¶32} Furthermore, R.C. 3109.04(F)(2) provides guidance for consideration of

factors for determining whether shared parenting is in the best interest of the children in

question.

{¶33} We note that there is no requirement that a trial court separately address

each best interest factor enumerated in R.C. 3109.04. See In re Henthorn, Belmont App.

No. 00–BA–37, 2001–Ohio–3459. Absent evidence to the contrary, an appellate court will

presume the trial court considered all of the relevant factors listed in R.C. 3109.04(F)(1).

Id., citing Evans v. Evans (1995), 106 Ohio App.3d 673, 677, 666 N.E.2d 1176. Delaware County, Case No. 17 CAF 06 0038 11

{¶34} Before turning to the merits of the present appeal, it is incumbent that we

set forth the status of the record before us. This Court is cognizant of the fact that

appellant, as well as appellee, are herein proceeding pro se; however, “[w]hile insuring

that pro se appellants *** are afforded the same protections and rights prescribed in the

appellate rules, we likewise hold them to the obligations contained therein.” Reed v. Reed,

5th Dist. Stark No. 2007CA00321, 2008-Ohio-4349, ¶ 17, citing State v. Wayt, 5th Dist.

Tuscarawas No. 90AP070045, 1991 W L 43005.

{¶35} In one of the interim orders in the trial court file before us, the court recited

that the evidentiary hearings as to custody commenced before the magistrate on

February 22, 2016 “and continued on multiple dates” until March 11, 2016. However, the

only transcripts in the present appellate record are from February 22, 2016 and February

23, 2016, along with one of the recusal hearings conducted on October 7, 2015. Neither

of the February transcripts includes a table of contents, so it is not clear therefrom how

many additional witnesses testified through the rest of the custody trial, but we are quite

confident the entirety of the trial is not before us in written form, and we find no indication

of attempted alternatives to a transcript under App.R. 9(C) or 9(D). The record also lacks

a transcript, sealed or otherwise, of the in camera interviews of T.K., K.K., and C.K.2

{¶36} Appellant, via her trial counsel, requested on December 28, 2016 that the

“remaining transcript” be accepted by the trial court in audio form for purposes of

appellant’s objections to the magistrate decision. The trial court thereafter permitted

2 This Court has consistently interpreted the pertinent sections R.C. 3109.04(B) such that in camera interviews are to remain confidential. See, e.g., Wallace v. Wallace, 5th Dist. Stark No. 2014CA00182, 2015–Ohio–1617, f.n.1. Generally, in camera interviews of minor children, if transcribed for appeal, are provided to this Court under trial court seal. Delaware County, Case No. 17 CAF 06 0038 12

same. However, it is clear from the Staff Notes to App.R. 9 that while a trial court may

choose to record the proceedings through the use of an audio-recording device,

“[r]egardless of the method of recording the proceedings, a transcript is required for the

record on appeal * * *. For parties who cannot afford to have a transcript prepared, existing

case law authorizes the use of a statement of proceedings under App.R. 9(C).” See In re

Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159, ¶ 15, quoting 2011

Staff Note to App.R. 9.

{¶37} It is well-settled that when portions of the transcript necessary to resolve

issues are not part of the record on appeal, we must presume regularity in the trial court

proceedings. In re Craig, 5th Dist. Tuscarawas No. 2008 AP 05 0030, 2008-Ohio-4251, ¶

9, citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400 N.E.2d 384.

However, in the interest of justice, we would at least note that appellant, in her brief,

places much emphasis on R.C. 3019.04(F)(1)(c), supra, the factor for consideration of

“[t]he child's interaction and interrelationship with the child's parents, siblings, and any

other person who may significantly affect the child's best interest.” In the partial transcript

provided, we observe that appellant, via her trial counsel, called appellee as the first

witness, followed by appellee’s mother, appellee’s sister, appellee’s father, and C.K.’s

godfather, followed by appellant herself. We observe the magistrate granted wide latitude

to counsel to delve into issues that in some cases predated the births of the three children.

But as appellee properly summarizes in his response, the magistrate and trial court were

in the best position to consider the credibility and demeanor of appellee’s family members

who are involved in the children’s lives. In that vein, the magistrate concluded, among

many other things: “All three children have spent significant time in their father’s home Delaware County, Case No. 17 CAF 06 0038 13

and the town of Tiffin, Ohio throughout their lives and with the consent of both parents.”

Decision at 61. See R.C. 3019.04(F)(1)(d). Furthermore, the trial court, in adopting the

magistrate’s decision, accepted inter alia that the joint custody arrangement, particularly

the three-weekend-per-month parenting time arrangement, had become a transportation

logistics issue and was seriously impacting the children’s extra-circular opportunities. See

R.C. 3019.04(F)(1)(a). The court also established that the magistrate had conducted in

camera interviews with all three children on two occasions: July 31, 2015 and March 11,

2016. See R.C. 3019.04(F)(1)(b).

{¶38} It is axiomatic that in proceedings involving the custody and welfare of

children, the power of the trial court to exercise discretion is peculiarly important. See

Thompson v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey

v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. While in this instance the GAL’s

recommendation was actually to grant custody of T.K (the oldest) to appellant and grant

custody of K.K. and C.K. to appellee, under the circumstances of our present limited

review, we presume regularity and find the trial court duly considered the statutory “best

interest” factors, and we conclude its decision to terminate the “joint legal custody”

arrangement set forth under the registered Virginia decree, while also keeping the three

sisters together, did not constitute an abuse of discretion.

{¶39} Appellant’s Second Assignment of Error is therefore overruled.

III.

{¶40} In her Third Assignment of Error, appellant contends the trial court failed to

afford her procedural due process of law as to the allegations of abuse regarding the

middle child, K.K. Delaware County, Case No. 17 CAF 06 0038 14

{¶41} As noted previously, on September 25, 2015, the GAL filed a motion for

emergency custody concerning K.K. The court arranged for a full hearing on October 7,

2015. The parties, their counsel, and the guardian ad litem appeared for the hearing and

made oral arguments, although this Court has been provided with the portion of the

transcript going to appellant’s request to remove the GAL only. According to appellee,

appellant called several witnesses, including the child’s volleyball coach, one of her

teachers, the school guidance counselor, and appellant’s fiancé. On October 22, 2015,

the magistrate issued her decision on the emergency order and denied appellant’s motion

to remove the GAL. Appellant filed objections to this decision on December 2, 2015, but

she therein focused on the GAL recusal issue, not that she was not given a full hearing.

{¶42} Generally, a temporary order allocating custody between parents is not a

final judgment, but rather is an interlocutory order. In re J.L.R., 4th Dist. Washington No.

08CA17, 2009-Ohio-5812, ¶ 29. A trial court's final order “supercedes [sic] the temporary

orders and corrects any error.” Id., citing Smith v. Quigg, 5th Dist. Fairfield No. 2005–CA–

01, 2006–Ohio–1494, ¶ 36. In the case sub judice, we find the emergency order granting

appellee custody of K.K., issued during the pendency of the opposing custody motions of

appellant and appellee, ultimately merged with the final judgment of the trial court granting

appellee residential and custodial parent status of all three children. Therefore, based on

our previous conclusions herein, we find the present assigned error is moot. See App.R.

12(A)(1)(c). See Font v. Morris, 3rd Dist. Mercer No. 10-03-21, 2004-Ohio-2354, ¶ 29.

{¶43} Appellant’s Third Assignment of Error is found to be moot. Delaware County, Case No. 17 CAF 06 0038 15

IV.

{¶44} In her Fourth Assignment of Error, appellant contends the trial court erred

in considering the recommendation of the GAL as a basis for its decision, even though

she had not submitted a written report. We disagree.

{¶45} Sup.R. 48(F) states that “[a] guardian ad litem shall prepare a written final

report, including recommendations to the court, within the times set forth in this division.”

However, we have recognized that Sup.R. 48 is a general guideline that does not have

the force of statutory law, and therefore an appellant does not have any substantive right

to enforce it. Rice v. Rice, 5th Dist. Delaware No. 10 CAF 11 0091, 2011–Ohio–3099, ¶

40, citing In re E.W., 4th Dist. Washington Nos. 10CA18, 10CA19, 10CA20, 2011–Ohio–

2123, ¶ 15.

{¶46} In addition, R.C. 3109.04(C) states as follows in pertinent part: “Prior to trial,

the court may cause an investigation to be made as to the character, family relations, past

conduct, earning ability, and financial worth of each parent and may order the parents

and their minor children to submit to medical, psychological, and psychiatric

examinations. The report of the investigation and examinations shall be made available

to either parent or the parent's counsel of record not less than five days before trial, upon

written request. The report shall be signed by the investigator, and the investigator shall

be subject to cross-examination by either parent concerning the contents of the report.

***.”

{¶47} We note at least one Ohio appellate court has concluded that nothing in

R.C. 3109.04(C) specifically relates to the appointment or duties of a guardian ad litem.

See In Matter of Reid, 3rd Dist. Paulding No. 11-98-3, 1998 WL 409115. We have voiced Delaware County, Case No. 17 CAF 06 0038 16

a similar concern. See O'Brien v. O'Brien, 5th Dist. Stark No. 2006 CA 00058, 2006-Ohio-

6729, ¶¶ 18-19. But see Dehoff v. Dehoff, 5th Dist. Stark No. CA-7323, 1988 WL 38552.

In any case, issues under R.C. 3109.04(C) are generally subject to the waiver doctrine.

See Wilburn v. Wilburn, 169 Ohio App.3d 415, 2006-Ohio-5820 (9th Dist.), ¶ 32.

{¶48} The record indicates the parties agreed that the GAL, Attorney Stranges,

would not be required to file a written report until the conclusion of the trial. See

Magistrate’s Order of Extension of Time, February 10, 2016, at 1. The trial court, in

subsequently ruling on appellant’s objections to the magistrate’s decision, stated in

pertinent part: “Of note is that no party raised any objection nor filed any motion for

contempt regarding the Guardian ad Litem’s failure to provide a written report by February

26, 2016.” Judgment Entry, June 1, 2016, at 10.

{¶49} Upon review, we find no error in the trial court’s utilization of waiver in regard

to appellant’s challenge to the lack of a written GAL report.

{¶50} Appellant’s Fourth Assignment of Error is overruled.

V.

{¶51} In her Fifth Assignment of Error, appellant contends the trial court erred in

permitting evidence in violation of Evid.R. 901(A), which states that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent

claims.”

{¶52} Our review of the record indicates that appellant did not specifically raise

this issue in her objections and supplemental objections to the magistrate's decision.

Civ.R. 53(D)(3)(b)(iv) provides that except for cases of plain error, “ * * * a party shall not Delaware County, Case No. 17 CAF 06 0038 17

assign as error on appeal the court's adoption of any factual finding or legal conclusion,

whether or not specifically designated as a finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Civ.R. 53(D)(3)(b).” See, e.g., Stamatakis v. Robinson, 5th Dist. Stark No. 96CA303, 1997

WL 115878.

{¶53} Furthermore, based on the incomplete record concerns as we discussed in

regard to appellant’s Second Assignment of Error, we find we must apply the presumption

of regularity to appellant’s present claim. Knapp, supra.

{¶54} Appellant’s Fifth Assignment of Error is therefore overruled.

{¶55} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Juvenile Division, Delaware County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

JWW/d 1130