[Cite as Tewalt v. Peacock, 2011-Ohio-1726.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
JOHN ALVA TEWALT, JR.,
PLAINTIFF-APPELLEE, CASE NO. 17-10-18
v.
KERRY PEACOCK, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court Juvenile Division Trial Court No. 2009-PAT-0012
Judgment Affirmed
Date of Decision: April 11, 2011
APPEARANCES:
Kimberly S. Kislig for Appellant
Thomas J. Buecker for Appellee Case No. 17-10-18
ROGERS, P.J.
{¶1} Defendant-Appellant, Kerry Peacock, appeals the judgment of the
Court of Common Pleas of Shelby County, Juvenile Division, resulting from a
paternity action. Specifically, Peacock objects to the trial court’s decision
granting Plaintiff-Appellee’s, John Tewalt, Jr., request that the visitation exchange
location (“exchange point”) recited in the Magistrate’s Decision, be changed from
Anna’s Police Department to Sidney’s Police Department. On appeal, Peacock
argues that the trial court erred by failing to treat Tewalt’s motion to correct a
clerical error as an objection to the Magistrate’s Decision; by not requiring Tewalt
to provide a hearing transcript; by reviewing a DVD recording of the final hearing;
by considering Peacock’s closing arguments; by changing the exchange point, as it
was against the manifest weight of the evidence; and, by ordering a new exchange
point, as it was not in the best interests of the parties’ minor child. Based upon the
following, we affirm the judgment of the trial court.
{¶2} In December 2008, Tewalt and Peacock, who never married, had one
child together, Rylee Tewalt (“Child”).
{¶3} In August 2009, Tewalt filed a complaint for paternity alleging that he
was the Child’s natural father. In his complaint, Tewalt also requested “an order
granting him care, custody, and control, and/or visitation with the child,” as well
as an order of support.
-2- Case No. 17-10-18
{¶4} In November 2009, the parties filed an agreed entry detailing, inter
alia, a visitation schedule, child support payments, and that the Anna Police
Department would be the exchange point. The Magistrate accepted the agreed
entry as a temporary order until the trial court issued its final judgment.
{¶5} In January 2010, Tewalt filed a proposed shared parenting plan. The
plan detailed, inter alia, the parents’ custodial rights, visitation, residential parent
status, and child support. The proposed plan did not, however, set forth an
exchange point.
{¶6} The case proceeded to a final hearing on April 28, 2010. During a
portion of the hearing the Magistrate failed to switch on the recording device. As
a result roughly an hour of testimony was not recorded. To resolve the issue, the
parties agreed to continue the hearing on May 17, 2010, and have those who
testified during the unrecorded portion testify again. The following testimony,
pertinent to the exchange point, was heard:
Tewalt’s Trial Counsel: If the exchange occurred at McDonald’s in Sidney and/or Piqua, would that be more convenient?
Tewalt: Yes, it would.
*** Peacock’s Trial Counsel: You indicated that the exchanges take place at the Sidney Police Department currently, isn’t it true that they take place at the Anna Police Department?
Tewalt: Well, in Anna, yes, sir, yes, ma’am, I mean.
-3- Case No. 17-10-18
*** Peacock’s Trial Counsel: Would you be willing to have the exchanges at the Sidney Police Department?
Tewalt: Yes, ma’am, that would be fine.
*** Peacock’s Trial Counsel: What would you ask the Court to find for an exchange point?
Peacock: The Sidney Police Department would seem adequate.
*** Peacock’s Trial Counsel: You’ve indicated that the temporary agreed visitation is working out, would you request that the Court continue that as a permanent order?
Peacock: Yes.
May 17, 2010, Hearing Tr., p. 19, 38-39. At no point during the hearing did
Peacock explicitly request that the Anna Police Department remain the exchange
point.
{¶7} In his closing arguments, Tewalt stated that he was willing to meet
Peacock at the Sidney Police Department or McDonald’s. In Peacock’s closing
arguments she stated that “Sidney is halfway in the middle so that does seem (sic)
a good meeting point.” Peacock also requested that the temporary order, agreed
upon by both parties, and filed with the trial court in November 2009, become a
permanent order.
-4- Case No. 17-10-18
{¶8} The Magistrate’s Decision was filed with the trial court in May 2010.
With regard to the exchange point, the Magistrate stated:
The issue of visitation exchange is contested as Kerry would prefer the exchange to occur at the Anna Police Department and John would prefer that the exchange occur in Sidney at McDonalds (sic). Local Rule 22 requires the visiting parent to “pick up the children and return the children.” Accordingly, the Magistrate will require the parties to make the exchange at the Anna Police Department for so long as Kerry resides in the Village of Anna.
(Doc. No. 49).
{¶9} On June 4, 2010, Tewalt filed a motion to correct a clerical error in the
Magistrate’s Decision. Specifically, Tewalt contended that the exchange point
should have been Sidney instead of Anna. In support of his motion, Tewalt stated
that during the hearing, both parties acknowledged that Sidney was an agreeable
{¶10} On July 21, 2010, the trial court held a hearing on the sole issue of
the exchange point. The trial court reviewed a DVD, which contained a recording
of the May 17, 2010 hearing. The trial court conducted this review in the presence
of the parties’ counsel. Specifically, the trial court reviewed Peacock’s direct
examination. At no time did Peacock object to the trial court’s use and
consideration of the DVD. The trial court also heard the following live testimony:
Peacock’s Trial Counsel: The testimony in the prior hearing where you indicated that the Sidney Police Department was an
-5- Case No. 17-10-18
adequate location, were you agreeing that the Sidney Police Department…
(Objection made, but overruled)
Peacock: Okay, I was under the impression that if the Magistrate would order the visitation pickup to be in Sidney, I would rather have it at the Police Department, then (sic) McDonald’s.
*** Tewalt’s Trial Counsel: And you don’t ever remember negotiating or talking to your attorney about agreeing to exchange in Sidney?
Peacock: No.
*** Tewalt’s Trial Counsel: John were you present at the hearing in April?
Tewalt: Yes, I was.
Tewalt’s Trial Counsel: At that time do you remember negotiating an exchange location for - -
Tewalt: - - Yes.
Tewalt’s Trial Counsel: What do you remember?
Tewalt: Well we’d, I said McDonalds (sic) and then you asked that wasn’t really an appropriate area and then you said something about Sidney Police Department and I said that would work for me as well.
Tewalt’s Trial Counsel: Do you remember Kerry agreeing to that?
Tewalt: Yes, she did.
-6- Case No. 17-10-18
Tewalt’s Trial Counsel: That was the record that was unfortunately not recorded by the Magistrate?
Tewalt: Yes, it was.
July 21, 2010, Hearing Tr., p. 10, 13, 15.
{¶11} Ultimately, the trial court found that the exchange point was never
contested, stating in pertinent part:
The evidence received by this Court includes a review of Defendant’s direct examination testimony of May 17, 2010 and the live testimony of Plaintiff and Defendant. Also of consideration are the arguments of counsel at this hearing as well as those made at the conclusion of the May 17, 2010 hearing.
From its review of the May 17, 2010 hearing, the Court finds the following exchange (between Defendant and her attorney) relevant:
(By K. Kislig to Defendant)
Q. “What would you ask the Court to find for an exchange point (sic).” A. “Sidney Police Department would seem adequate.”
** Also relative to this issue is the statement by attorney Kislig to the Magistrate (at the May 17, 2010 hearing) regarding this issue wherein attorney Kislig * * * advised the Magistrate that Sidney is “half way, in the middle” and “a good meeting point.”
It is clear to this Court that an exchange location for visitation was never in controversy until the present. The Defendant as well as her counsel, reported to the Magistrate that Sidney was a good middle point for a safe and proper exchange to take place.
-7- Case No. 17-10-18
(Doc. No. 62).
{¶12} In August 2010, an order/entry was filed adopting the Magistrate’s
Decision, wherein the Sidney Police Department was listed as the exchange point.
Shortly thereafter, Peacock filed a notice of appeal with this Court, as well as the
transcripts of the April, May, and July hearings.
{¶13} It is from this judgment that Peacock appeals, presenting the
following assignments of error for our review.
Assignment of Error No. I
THE PLAINTIFF-APPELLEE’S MOTION TO CORRECT ERROR SET FORTH IN THE MAGISTRATE’S DECISION AND ORDER FILED WITH THE COURT ON APRIL 8, 2010 (“MOTION TO CORRECT ERROR”) WAS NOT ACTUALLY A REQUEST TO CORRECT A “CLERICAL ERROR” AS INDICATED WITHIN THE MOTION TO CORRECT ERROR BUT RATHER WAS A POORLY DISGUISED OBJECTION TO THE MAGISTRATE’S DECISION AND WAS USED AS A MEANS TO CIRCUMVENT THE PROPER OBJECTION PROCESS (AND COST). ACCORDINGLY, THE PLAINTIFF- APPELLEE SHOULD BE REQUIRED TO REIMBURSE DEFEDNANT-APPELLANT’S COSTS FOR PREPARATION OF THE HEARING TRANSCRIPT.
Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT CONSIDERED THE MOTION TO CORRECT AS AN OBJECTION TO THE MAGISTRATE’S DECISION FILED MAY 21, 2010, (“MAGISTRATE’S DECISION”) WITHOUT REQUIRING PLIANTIFF-APPELLEE TO PROVIDE A TRANSCRIPT OF
-8- Case No. 17-10-18
THE FINAL HEARING UPON WHICH THE MAGISTRATE’S DECISION WAS BASED.
Assignment of Error No. III
THE TRIAL COURT ERRED WHEN IT “REVIEWED A PORTION OF THE TRIAL DVD” (“DVD REVIEW”) AS “ADDITIONAL EVIDENCE” FOR THE PLAINTIFF- APPELLEE’S “OBJECTION” AS INDICATED IN ITS ORDER/ENTRY FILED JULY 21, 2010 (“EXCHANGE LOCATION ENTRY”) BECAUSE SUCH DVD REVIEW DOES NOT CONSTITUTE “ADDITIONAL EVIDENCE” AS SUCH EVIDENCE COULD, WITH REASONABLE DILIGENCE, HAVE BEEN PRODUCED BY THE FATHER FOR CONSIDERATION BY THE MAGISTRATE.
Assignment of Error No. IV
THE TRIAL COURT ERRED WHEN IT USED STATEMENTS MADE BY DEFENDANT-APPELLANT’S COUNSEL IN HER CLOSING STATEMENT AS “ADDITIONAL EVIDENCE” BECAUSE STATEMENTS BY COUNSEL ARE NOT EVIDENCE.
Assignment of Error No. V
THE TRIAL COURT ERRED IN ITS EXCHANGE LOCATION ENTRY WHEN IT HELD THAT THE “EXCHANGE LOCATION FOR VISITATION WAS NEVER IN CONTROVERSY” BASED UPON AN AGREEMENT BETWEEN THE PARTIES BECAUSE SUCH HOLDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. VI
THE TRIAL COURT ERRED WHEN IT ORDERED THAT THE EXCHANGE LOCATION OCCUR AT THE SIDNEY POLICE DEPARTMENT, INSTEAD OF THE ANNA POLICE DEPARTMENT, BECAUSE SUCH EXCHANGE LOCATION
-9- Case No. 17-10-18
IS NOT IN THE BEST INTERESTS OF THE PARTIES’ MINOR CHILD.
{¶14} Due to the nature of Peacock’s assignments of error, we elect to
address her first, second, and third assignments of error together, and her fourth
and fifth assignments of error together.
Assignments of Error Nos. I, II, and III
{¶15} In her first, second, and third assignments of error, Peacock contends
that Tewalt’s motion to correct a clerical error was in fact an objection to the
Magistrate’s Decision. As a result, Peacock contends that Tewalt should have
been required to file the transcripts with the trial court and pay the costs.
Additionally, Peacock contends that the trial court erred in reviewing the DVD
because it was not additional evidence. We disagree.
{¶16} Civ.R. 60(A) governs the correction of clerical mistakes within court
documents, and states in pertinent part:
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 order.
{¶17} “Civ.R. 60(A) permits a trial court, in its discretion, to correct
clerical mistakes which are apparent on the record, but does not authorize a trial
court to make substantive changes in judgments. * * * The term ‘clerical mistake’
-10- Case No. 17-10-18
refers to a mistake or omission, mechanical in nature and apparent on the record
which does not involve a legal decision or judgment.” Blust v. Lamar Advertising
of Mobile, Inc., 183 Ohio App.3d 478, 2009-Ohio-3947, at ¶20, quoting State ex
rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 100, superseded by rule on
other grounds.
{¶18} The distinction between clerical mistakes that can be corrected and
those that cannot was aptly set forth by the Ninth District Court of Appeals,
writing:
The basic distinction between clerical mistakes that can be corrected under Civ.R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of ‘blunders in execution’ whereas the latter consists of instances 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.
Londrico v. Delores C. Knowlton, Inc. (1993), 88 Ohio App.3d 282, 285.
{¶19} Civ.R. 60(A) is not an appropriate means for the type of correction
Tewalt sought. We find that the true purpose of Tewalt’s motion was to challenge
the Magistrate’s Decision regarding the exchange point, not correct a
transcriptional error. The record contains no evidence that the Magistrate intended
Sidney be the exchange point or mistakenly listed Anna as the exchange point.
Moreover, the record contains no evidence that the parties agreed that Sidney
-11- Case No. 17-10-18
would be the exchange point. Accordingly, the correction Tewalt sought cannot
be fairly characterized as a “mechanical” correction that does not involve a legal
decision or judgment. Civ.R. 60(A). In light of the foregoing, we find that
Tewalt’s motion to correct a clerical error (hereinafter “objection”) was in fact an
objection to the Magistrate’s Decision.
{¶20} Objections to a Magistrate’s decision must meet the requirements set
forth in Civ.R. 53(D)(3)(b). Generally, an objecting party must meet three
requirements in order to properly file its objections, to wit: timeliness, specificity,
and filing transcripts.1 The issue before this Court is whether the trial court erred
in considering Tewalt’s objection in spite of his failure to file transcripts.
{¶21} Pursuant to Civ.R. 53(D)(3)(b)(iii), a party objecting to a
Magistrate’s decision must file transcripts of all the evidence presented to the
Magistrate. The rule states:
An objection to a factual finding * * * shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. * * * The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.
1 Although not raised on appeal, we note that Tewalt did file the motion/objection within fourteen days after the Magistrate filed its decision. Civ.R. 53(D)(3)(b)(i). We also note that Tewalt’s objection sufficiently stated the grounds for the objection. Civ.R. 53(D)(3)(b)(ii).
-12- Case No. 17-10-18
Civ.R. 53(D)(3)(b)(iii).
{¶22} Tewalt never filed transcripts with the trial court. Peacock contends
that due to Tewalt’s failure, the trial court erred in considering Tewalt’s objection.
In support of her contention, Peacock cites Pagonis v. Steele, 9th Dist. No. 25189,
2010-Ohio-4459. In Pagonis, a father filed objections to the Magistrate’s
decision, but failed to file the accompanying transcripts. The trial court overruled
the father’s objection on the basis that it had not been provided with the
transcripts. The appellate court, finding in favor of the trial court, found that
without the transcripts the trial court could not have adequately reviewed the
judgment for which the objection was filed. Accordingly, it was proper for the
trial court to overrule the father’s objection.
{¶23} We find that the case at bar is distinguishable from Pagonis. In
Pagonis, the trial court, within its discretion, chose to overrule the father’s
objections due to his failure to file the transcripts. Civ.R. 53(D)(4)(b). Like the
father in Pagonis, Tewalt failed to file the transcripts, and thus the trial court could
have overruled his objections. However, unlike the trial court in Pagonis, the trial
court here obtained a DVD of the May hearing. We find that the DVD was an
alternative form of the transcript, thus satisfying the transcript requirement.
Civ.R. 53(D)(3)(b)(iii). In reaching this finding two issues must be addressed.
-13- Case No. 17-10-18
{¶24} First, can the filing of a DVD, which contains a recording of the
hearing before the Magistrate, satisfy the transcript requirement set forth in Civ.R.
53(D)? In response to this issue, we find in the affirmative. Civ.R.
53(D)(b)(3)(iii) in pertinent part states, “With leave of court, alternative
technology or manner of reviewing the relevant evidence may be considered.”
Although the DVD is not in the record, it appears, based upon the trial court’s
description of the DVD’s contents, that it contained the same testimony that would
have appeared in the transcript, had it been filed. Accordingly, the DVD, in the
case at bar, is an acceptable form of “alternative technology,” as defined in Civ.R.
53(D).
{¶25} The second issue, to some degree, is born from the first issue.
Within the portion of Civ.R. 53(D) concerning alternative technology, appears the
phrase, “with leave of court.” Tewalt neither filed a motion nor otherwise
requested leave of court to file a transcript or alternative technology in lieu of the
transcript. Accordingly, it would appear as though the trial court’s use of the
DVD was improper, which leads us to the second issue. Is it within the trial
court’s discretion, in light of an objecting party’s failure to file the transcript, to
sua sponte obtain and consider the transcript or alternative technology? The
record does not reveal how the trial court obtained the DVD. Regardless of how
the trial court obtained the DVD, the fact remains that it did so outside of the
-14- Case No. 17-10-18
procedures set forth in Civ.R. 53(D). While this may seem improper, we must
bear in mind the latitude given to the trial court in reviewing a Magistrate’s
decision.
{¶26} Civ.R. 53(D)(4)(b) governing the trial court’s review of a
Magistrate’s decision states:
Whether or not objections are timely filed, a court may adopt or reject a magistrate’s decision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.
Even though we view the DVD as a substitute for the transcript, and thus outside
the meaning of “additional evidence,” we find that the latitude afforded to the trial
court in this provision is demonstrative of the great latitude of discretion afforded
to the trial court when reviewing a Magistrate’s decision. There is nothing in
Civ.R. 53, which prohibits or otherwise limits the trial court’s ability to sua sponte
obtain and consider the transcript or alternative technology. Accordingly, we find
that the trial court’s consideration of the DVD cured Tewalt’s failure to file the
-15- Case No. 17-10-18
transcript, and was a proper exercise of its discretion.2
{¶27} Even if we were to find that the trial court erred in considering the
DVD, the error would not have been prejudicial to Peacock. First, use of the DVD
to review testimony heard by the Magistrate was not prejudicial. The trial court
indicated that the DVD depicted the May 17, 2010 hearing. Accordingly, we find
that the DVD and the transcript, had it been properly filed, would have contained
the same testimony. Second, the DVD was reviewed by the trial court in the
presence of the parties’ counsel. Peacock, however, did not object to the trial
court’s use and consideration of the DVD. Peacock’s failure to object, subjects
her current objection to plain error review. As we found above, though, the trial
court properly exercised its discretion in considering the DVD, thus we find no
prejudice to Peacock.
{¶28} Finally, Peacock contends that the trial court erred in reviewing the
DVD as “additional evidence,” because the DVD was available immediately
following the Magistrate’s hearing. We disagree based upon our foregoing
analysis. Above, we found that the DVD did not fall within the meaning of
“additional evidence” as it appears in Civ.R. 53(D)(4)(b). Instead we found the
2 While we find that a trial court may sua sponte obtain and consider transcripts of a hearing before a Magistrate, even in spite of an objecting party’s failure to file the transcripts, we are not suggesting that trial courts freely take such action. We believe that the better procedure is to require full compliance with the Civil Rules unless the trial court perceives a question with the findings of the Magistrate that should be resolved prior to issuing judgment.
-16- Case No. 17-10-18
DVD was alternative technology, and thus served as a permissible substitute for
the transcript. Accordingly, since the DVD is not “additional evidence,” we find
that Peacock’s contention lacks merit.
{¶29} In light of the foregoing, we find that a trial court, in spite of an
objecting party’s failure to file transcripts, may sua sponte obtain and consider the
transcripts or alternative technology when reviewing the Magistrate’s decision.
Accordingly, we overrule Peacock’s first, second, and third assignments of error.
Assignments of Error Nos. IV and V
{¶30} In her fourth and fifth assignments of error, Peacock contends that
the trial court erred in changing the exchange point as it was against the manifest
weight of the evidence. Specifically, Peacock contends that the trial court
improperly considered evidence, and that the record clearly reflects her desire that
Anna, not Sidney, be the exchange point. We disagree.
{¶31} An appellate court reviews the trial court’s decision to adopt, reject
or modify the Magistrate’s decision under an abuse of discretion standard. Figel v.
Figel, 3d Dist. No. 10-08-14, 2009-Ohio-1659, ¶9, citing Marchel v. Marchel, 160
Ohio App.3d 240, 2005-Ohio-1499, ¶7. However, when reviewing the
Magistrate’s decision, the trial court “shall undertake an independent review as to
the objected matters to ascertain that the Magistrate has properly determined the
factual issues and appropriately applied the law.” Civ.R. 53 (D)(4)(d); Goldfuss v.
-17- Case No. 17-10-18
Traxler, 3d Dist. No. 16-08-12, 2008-Ohio-6186, ¶7. Accordingly, the trial court is
free to adopt, reject, or modify the decision of the Magistrate under its de novo
review. Id., citing Stumpff v. Harris, 2d Dist. No. 21407, 2006-Ohio-4796, ¶16;
Civ.R. 53(D)(4)(b). Furthermore, a trial court’s decision will not be reversed on
appeal as being against the manifest weight of the evidence as long as there is
some competent, credible evidence to support the decision. Cichanowicz v.
Cichanowicz, 3d Dist. No. 3-08-04, 2008-Ohio-4779, ¶20, citing Duer v.
Moonshower, 3d Dist. No. 15-03-15, 2004-Ohio-4025, ¶15.
{¶32} In finding that the exchange point was never contested the trial court
highlighted two exchanges. In the first exchange, Peacock was asked what she
would ask the trial court to find for an exchange point, to which she responded the
Sidney Police Department would be adequate. The second exchange occurred
during Peacock’s closing statement, when she conceded that Sidney is in the
middle and a good meeting point.
{¶33} We first note that Peacock, in her fourth assignment of error,
contends that the trial court erred in considering her counsel’s statement during
closing arguments, as it was not evidence. While we agree with Peacock’s
contention, we do not find that Peacock was prejudiced by the trial court’s
consideration of the statement. Had the trial court not considered the statement,
-18- Case No. 17-10-18
there is other competent, credible evidence in the record that supports the trial
court’s decision.
{¶34} Peacock also contends that the record contains evidence that the
parties never agreed to Sidney as the exchange point. First, Peacock cites her
testimony from the May hearing, during which she requests the temporary order,
which listed Anna as the exchange point, become a permanent order. Second,
Peacock cites her July testimony, during which she attempted to explain her
statement concerning the adequacy of the Sidney Police Department as an
exchange point. Last, Peacock cites her testimony that the parties never agreed
that Sidney would be the exchange point.
{¶35} While we may have come to a different conclusion than that of the
trial court in reviewing the evidence presented, our role is only to review for an
abuse of discretion. Reviewing the record in its entirety, we find that the trial
court’s decision was supported by some competent, credible evidence.
{¶36} We begin with the live testimony received by the trial court in July
2010. During that hearing Peacock attempts to explain her statement concerning
the adequacy of the Sidney Police Department as an exchange point. The trial
court also receives a substantial amount of testimony, from both Tewalt and
Peacock, concerning the existence of an agreement, in which the parties agreed
that the Sidney Police Department would be the exchange point. While all the
-19- Case No. 17-10-18
testimony was relevant, the credibility of the witnesses and the weight given to the
testimony was squarely within the purview of the trial court’s judgment.
Considering the trial court’s ultimate finding, it appears that the trial court
afforded little weight to either party’s testimony, a choice well within its
discretion.
{¶37} Having apparently found little credibility in the parties’ live
testimony, the trial court turned to the DVD recording of the May hearing. During
that hearing Peacock requested that the temporary order, which listed Anna as the
exchange point, become permanent. Immediately preceding this request, however,
Peacock stated that the Sidney Police Department was an adequate exchange
point. Faced with conflicting testimony from the same individual, the trial court,
sitting as the trier of fact, apparently found Peacock’s statement regarding the
adequacy of Sidney as the exchange point more credible. This finding was well
within the trial court’s discretion.
{¶38} In light of the foregoing, we find that the trial court did not abuse its
discretion in finding that the exchange point was never in contention, as there was
competent, credible evidence to support its finding. Accordingly, we overrule
Peacock’s fourth and fifth assignments of error.
-20- Case No. 17-10-18
{¶39} In her sixth assignment of error, Peacock contends that the trial court
erred in changing the exchange point, as it was not in the best interests of their
Child. We disagree.
{¶40} We first note that Peacock never raised the Child’s best interests, as
it pertained to the exchange point, in the proceedings below. Moreover, Peacock
does not now claim that the trial court’s decision, as it pertains to the best interests
of the Child, resulted in plain error. Civ.R. 53(D)(3)(b)(iv). Accordingly, we need
not address the contention on appeal. Id.
{¶41} However, in considering the merits of this contention we find that
only Peacock’s interests were at issue, a fact made clear in the following colloquy
between Tewalt’s trial counsel and Peacock:
Q. So, halfway between Anna and Piqua would be the Sidney location?
A. Yes.
Q. Is that an appropriate location for the exchange?
A. I don’t believe so.
Q. Why?
A. Fear of safety.
Q. Well, you, you’ve been exchanging at the police department in Anna. Have you ever had occasion to use Anna police?
-21- Case No. 17-10-18
A. No.
Q. Would you not be as safe at Sidney as you would in Anna?
A. I would have to make sure somebody would be with me, would be watching the pickups.
Q. What difference is it between Anna PD and Sidney PD?
A. You can see Anna PD from my residence so when Rylee gets picked up and dropped off, I have somebody watching for my safety.
July 21, 2010, Hearing Tr., p. 12. It is clear from this testimony that Peacock was
only concerned with her safety. Had she been concerned for her Child’s safety she
would have, at the very least, testified that she wanted someone watching the
exchange for her Child’s safety as well.
{¶40} Accordingly, we overrule Peacock’s sixth assignment of error.
{¶41} In reviewing the manner in which Tewalt presented his disagreement
with the Magistrate’s Decision we note first that there is a specific procedure for
objections provided for in Civil Rule 53(D)(3)(b), and no procedure for a “motion
to correct clerical errors.” It would appear that Tewalt either was attempting to
utilize Civil Rule 60(A) which is only proper after a final judgment, or that he was
simply attempting to avoid the cost of a transcript which would be necessary to
-22- Case No. 17-10-18
properly present his complaint by means of an objection. We further note that the
trial court found it necessary to review a DVD of at least a portion of the hearing
held before the Magistrate, which is further indication that a transcript should have
been provided to the trial court. We find it unreasonable to allow Tewalt to avoid
that expense and to have him shift it to Peacock simply by designating his
objection as a motion to correct a clerical error. It is clear to us that the
Magistrate’s finding was factual in nature, not clerical. We will therefore assess
the cost of this appeal to Tewalt, including the costs of all transcripts.
{¶42} Having found no error prejudicial to Peacock herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Pursuant to App.R. 24(A), costs of appeal, including the costs associated with the
creation and filing of the transcripts, are assessed to Appellee. This cause is
remanded to the trial court for execution of the judgment for costs.
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
-23-