[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.

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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.

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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.



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      {¶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

exchange point.

      {¶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

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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.

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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.

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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


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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

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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’


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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


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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).

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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.


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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

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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




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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.


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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.

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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,



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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

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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.




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                              Assignment of Error No. VI

       {¶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?

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      A.    No.

      Q.    Would you not be as safe at Sidney as you would in Anna?

      A.    I don’t believe so.

      Q.    Why?

      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

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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.

                                                                   Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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