Rose v. Stanley

2014 Ohio 4951

• Court: Ohio Court of Appeals
• Decided: November 3, 2014
• Docket: 14-CA-23
• Status: Published

Opinion

[Cite as Rose v. Stanley, 2014-Ohio-4951.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

GENEVIEVE ROSE : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 14-CA-23 : PHILLIP STANLEY : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 02 DR 434

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY: November 3, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

No Appellee Brief Filed JASON A. PRICE The Jason A. Price Law Group A Legal Professional Assoc. 126 East Chestnut Street Lancaster, OH 43130 Fairfield County, Case No. 14-CA-23 2

Delaney, J.

{¶1} Defendant-Appellant Phillip Stanley appeals the February 12, 2014 default

judgment entry of the Fairfield County Court of Common Pleas, Domestic Relations

Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellee Genevieve Rose and Defendant-Appellant Phillip

Stanley were divorced on September 7, 2004. One child was born of the marriage.

Stanley was named residential parent of the child.

{¶3} On August 13, 2013, Rose was awarded custody of the child. The Fairfield

County Child Support Enforcement Agency, on behalf of Rose, filed a Motion to

Establish Child Support. The motion was set for hearing on January 10, 2014.

{¶4} All parties appeared for the January 10, 2014 hearing. The matter was

continued until February 7, 2014 at the request of Stanley.

{¶5} On February 7, 2014, Stanley failed to appear at the hearing due to a

conflict with his work schedule. He had attempted to continue the hearing by contacting

the Fairfield County CSEA.

{¶6} The hearing went forward on February 7, 2014 before the magistrate. On

February 12, 2014, the trial court issued a Default Judgment Entry ordering Stanley to

pay child support in the amount of $591.64 per month, effective October 29, 2013. The

Default Judgment Entry was signed by the magistrate and the trial court judge. The

Default Judgment Entry did not contain Civ.R. 53(D)(3)(a)(iii) language.

{¶7} Stanley filed an appeal of the February 12, 2014 Default Judgment Entry.

Stanley requested a transcript of the February 7, 2014 hearing though a form pursuant Fairfield County, Case No. 14-CA-23 3

to Loc.R. 28.0 of the Fairfield County Court of Common Pleas. The form stated the

request could not be completed by the court because there was "no oral hearing." There

was no electronic recording of the February 7, 2014 proceedings before the magistrate.

ASSIGNMENT OF ERROR

{¶8} Stanley raises one Assignment of Error:

{¶9} "THE COURT ERRED WHEN IT FAILED TO RECORD THE

PROCEEDINGS PURSUANT TO CIV.R. 53(D)(7) AND FAIRFIELD COUNTY

DOMESTIC RELATIONS COURT LOCAL RULES 19.4 AND 28.1"

ANALYSIS

{¶10} Stanley argues the trial court erred when it failed to record the February 7,

2014 proceedings before the magistrate in contravention of Civ.R. 53(D)(7) and Loc.R.

19.4 and 28.1 of the Fairfield County Court of Common Pleas, Domestic Relations

Division. Stanley states that without a recording of the hearing, Stanley cannot

effectively assign as error the trial court's factual determination as to his income to

calculate his child support obligation. We agree.

{¶11} Civ.R. 53(D)(7) states: "Recording of proceedings before a magistrate.

Except as otherwise provided by law, all proceedings before a magistrate shall be

recorded in accordance with procedures established by the court." Fairfield County, Case No. 14-CA-23 4

{¶12} Loc.R. 19.4 of the Fairfield County Court of Common Pleas, Domestic

Relations states:

Proceedings.

(1) All proceedings before the magistrate shall be in accordance with

these rules and any applicable statutes, as if before the court.

(2) Except as otherwise provided by law, all proceedings before the

magistrate shall be recorded in accordance with procedures established

by the court.

{¶13} Loc.R. 28.1 of the Fairfield County Court of Common Pleas, Domestic

Relations Division states:

Recording of Proceedings. Unless otherwise ordered by the Court, all

matters of record shall be preserved by electronic recording. In any in

chambers proceedings, if counsel for any party desires that a record be

made, said counsel shall notify the court, in writing, at least three full

working days prior to the time of the scheduled proceeding, of counsel’s

desire for a record.

{¶14} It has been stated that the rule to record a magistrate's hearing "'was

adopted in part to assure that there is no shoddy or irregular practice regarding the

recording of magistrate's hearings throughout the state.' Moyers v. Moyers (June 18,

1999), 11th Dist. No. 98-A-0080 (discussing the former provision, Civ.R. 53(D)(2), that

was identical in wording). The Eleventh District has stated: 'This court notes that it has

made it abundantly clear to the judges of this trial court that a renewed practice of not

providing a formal record of the proceedings before the magistrates of that court would Fairfield County, Case No. 14-CA-23 5

not be countenanced, except under the most narrow of justifiable circumstances, viz.

the unknown malfunction of an official reporting device.'" Gobel v. Rivers, 8th Dist.

Cuyahoga No. 94148, 2010-Ohio-4493, ¶ 27-28.

{¶15} In Gobel, the Eighth District Court of Appeals found it was harmless error

when the magistrate failed to record a contempt hearing because the plaintiff waived the

child support arrears. Id. at ¶ 24. In the present case, Stanley disputes the basis of the

magistrate's determination as to Stanley's income to calculate his child support

obligation.

{¶16} Stanley did not file objections to the February 21, 2014 judgment entry

prior to his appeal. We find Stanley was not obligated to file objections to the judgment

entry prior to his appeal of the same. The judgment entry was signed by the trial court

judge and the entry did not contain language pursuant to Civ.R. 53(D)(3)(a)(iii)

designating the judgment entry as a magistrate's decision or informing that a party may

not assign as error on appeal unless the party specifically objects to the factual finding

or legal conclusion.

{¶17} Accordingly, we sustain Stanley's sole Assignment of Error. Fairfield County, Case No. 14-CA-23 6

CONCLUSION

{¶18} The February 12, 2014 Default Judgment Entry of the Fairfield County

Court of Common Pleas, Domestic Relations Division is reversed and the matter is

remanded to the trial court for further proceedings consistent with this opinion and law.

By: Delaney, J.,

Hoffman, P.J. and.

Baldwin, J., concur.