[Cite as Harrel v. Donovan, 2016-Ohio-979.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

HEATHER HARREL fka DONOVAN                           C.A. No.      15CA010765

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MICHAEL DONOVAN                                      COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellee                                     CASE No.   11DU073702

                                DECISION AND JOURNAL ENTRY

Dated: March 14, 2016



        MOORE, Judge.

        {¶1}     Plaintiff-Appellant, Heather Harrel fka Donovan (“Mother”), appeals from the

judgment of the Lorain County Court of Common Pleas, Domestic Relations Division. This

Court affirms.

                                                I.

        {¶2}     In 2012, Mother obtained a divorce from Defendant-Appellee, Michael Donovan

(“Father”), and was named the sole residential parent and legal custodian of the parties’ two

children: E.D., born in 1996, and M.D., born in 2003. The parties agreed to a visitation schedule,

pursuant to which Father would have monitored visitation with one or both of the children for a

two-month period followed by limited, unsupervised visitation.         The divorce decree also

provided that Father would be responsible for and indemnify Mother against “[a]ny and all debt

regarding the Camper which is presently subject to a lawsuit * * *.”
                                                    2


          {¶3}   In 2014, Father filed a motion to expand the parenting time that he enjoyed with

the parties’ youngest child,1 and Mother asked the court to find Father in contempt. Relevant to

this appeal, Mother alleged that a civil judgment had been entered against her and that she faced

garnishment proceedings because Father had failed to defend and indemnify her in the lawsuit

related to the parties’ camper. A magistrate held a hearing on both motions. The magistrate

determined that it was in the best interests of the parties’ child to afford Father additional

visitation. She also rejected Mother’s assertion that Father had violated the divorce decree

because “[t]here was insufficient evidence to show that any judgment was placed against or

garnishment attached to [Mother].” Consequently, the magistrate granted Father’s motion for

additional visitation and denied Mother’s motion to hold Father in contempt.

          {¶4}   Mother filed objections to the magistrate’s decision. The trial court held a hearing

on her objections and denied them, in part, because she failed to support her objections with a

transcript of the hearing before the magistrate. The court adopted the magistrate’s decision,

granted Father’s motion for expanded parenting time, and denied Mother’s motion to hold Father

in contempt.

          {¶5}   Mother now appeals from the trial court’s judgment and raises two assignments of

error for our review.

                                                   II.

                                    ASSIGNMENT OF ERROR I

          WHETHER A NON-CUSTODIAL PARENT MUST PROVE A CHANGE IN
          CIRCUMSTANCES PURSUANT TO OHIO REV. CODE §3109.04(E)(1)(A)
          TO JUSTIFY A CHANGE IN THE PARENTING TIME AWARDED IN THE
          DIVORCE DECREE[.]



1
    At the time Father filed his motion, the parties’ eldest child had almost turned 18.
                                                 3


       {¶6}    In her first assignment of error, Mother argues that the magistrate and the trial

court applied the wrong legal standard when deciding whether to grant Father’s motion for

additional visitation. She argues that, before the lower court could grant Father’s motion, it first

had to find that a change in circumstances had occurred. We disagree.

       {¶7}    This Court has “consistently held—in accordance with Braatz[ v. Braatz, 85 Ohio

St.3d 40 (1999)]—that in the absence of a shared parenting plan, motions to modify parenting

time are analyzed under R.C. 3109.051, and no change in circumstances is necessary.” Pirkel v.

Pirkel, 9th Dist. Lorain No. 13CA010436, 2014-Ohio-4327, ¶ 6. A change of circumstances

showing is necessary in a shared parenting situation because, in those instance, the movant is

actually “seeking a reallocation of parental rights and responsibilities * * *.” Gunderman v.

Gunderman, 9th Dist. Medina No. 08CA0067-M, 2009-Ohio-3787, ¶ 23. The same cannot be

said of motions made in the absence of a shared parenting plan where one parent has been named

the sole residential parent and legal custodian. See Pirkel at ¶ 5-6. Consequently, in those

situations, the movant need only show that the proposed modification is in the best interests of

the child. See King v. Carleton, 9th Dist. Lorain No. 13CA010374, 2013-Ohio-5781, ¶ 22.

       {¶8}    Mother argues that both the magistrate and the trial court erred when they granted

Father’s motion for additional visitation without first considering whether a change in

circumstances had occurred.      In reviewing her argument, however, we need only consider

whether the trial court erred. See Mealey v. Mealey, 9th Dist. Wayne No. 95CA0093, 1996 WL

233491, *2 (May 8, 1996) (“Any claim of trial court error must be based on the actions of the

trial court, not on the magistrate’s findings or proposed decision.”). The record reflects that the

trial court applied this Court’s precedent when it decided Father’s motion for additional

visitation. See Pirkel, supra. In the court below, Mother objected to the application of Pirkel
                                                  4


strictly “to preserve[] [an] assignment of error pending a decision on [the] issue in Pirkel, Ohio

Supreme Court Case No. 2014-1924.”2 She did not set forth any additional arguments as to why

this Court should abandon its precedent in Pirkel.            Because the trial court did not err by

considering Father’s motion in light of this Court’s precedent, Mother’s first assignment of error

is overruled.

                                  ASSIGNMENT OF ERROR II

         A COMMON PLEAS DOMESTIC JUDGE AND MAGISTRATE ERR AND
         ABUSE THEIR DECRETION (sic) BY NOT TAKING ACCURATE JUDCIAL
         (sic) NOTICE OF A JUDGMENT IN THE SAME COMMON PLEAS COURT.

         {¶9}    In her second assignment of error, Mother argues that the magistrate and trial

court erred when they did not take judicial notice of the fact that a civil judgment had been

entered against her in the General Division. Further, she argues that the trial court erred when it

determined that her objection “required the filing of a hearing transcript to ascertain if the

magistrate was asked to take judicial notice of this fact.”

         {¶10} The magistrate rejected Mother’s claim that Father had violated their divorce

decree by failing to indemnify her in the lawsuit related to the parties’ camper. Specifically, the

magistrate found:

         This matter is still in litigation in the General Division. There was insufficient
         evidence to show that any judgment was placed against or garnishment attached
         to [Mother]. It appears this issue is not yet ripe as no evidence of final judgment
         in that matter has been presented.

Mother objected to the magistrate’s decision on the basis that she had, in fact, had a civil

judgment entered against her. The trial court overruled her objection because, in the absence of a

hearing transcript, it could not consider whether she had presented sufficient evidence of the

entry of a civil judgment.

2
    The Supreme Court has since declined to review this Court’s decision in Pirkel.
                                                 5


       {¶11} Mother argues that the court erred when it rejected her objection because she did

not support it with a hearing transcript. According to Mother, a transcript was unnecessary

because “[j]udicial notice of facts is a matter of law * * *.” She argues that the trial court

committed a legal error when it refused to take judicial notice because the status of a case that

appears on the General Division’s docket is a matter that is generally known in the jurisdiction.3

See Evid.R. 201(B). Mother’s argument is problematic in several respects.

       {¶12} First, the record reflects that Mother did not object to the magistrate’s decision on

the basis of judicial notice. See Civ.R. 53(D)(3)(b)(iv) (errors in court’s adoption of magistrate’s

decision forfeited when party fails to object to them). Second, this Court has previously rejected

judicial notice arguments when an appellant has failed to secure a transcript of the proceedings.

See, e.g., State v. Campbell, 9th Dist. Medina No. 10CA0120-M, 2011-Ohio-5433, ¶ 4-7; St.

Clair v. St. Clair, 9 Ohio App.3d 195, 196 (9th Dist.1983). Finally, this Court has repeatedly

held that a trial court “may only take judicial notice of prior proceedings in the immediate case.”

In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, ¶ 14 (9th Dist.). For all of the foregoing

reasons, Mother’s argument lacks merit.        Accordingly, her second assignment of error is

overruled.

                                                III.

       {¶13} Mother’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                               Judgment affirmed.




3
  Mother also argues that the magistrate erred in this respect. As previously discussed, however,
this Court must confine its review to claims of trial court error. See Mealey, 1996 WL 233491,
at *2.
                                                 6




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

MICHAEL J. TONY, Attorney at Law, for Appellee.
