[Cite as In re J.L.F., 2012-Ohio-1748.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97405



                                          IN RE: J.L.F.

                                          Minor Child

                          [APPEAL BY MOTHER, C.H.]



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                         Juvenile Division
                                      Case No. SU 03702402

        BEFORE: Stewart, J., Blackmon, A.J., and Jones, J.

        RELEASED AND JOURNALIZED:                  April 19, 2012
ATTORNEY FOR APPELLANT MOTHER

A. Clifford Thornton, Jr.
Peckinpaugh & Thornton, LLC
Three Commerce Park Square
23230 Chagrin Boulevard, No. 605
Cleveland, OH 44122


FOR APPELLEE FATHER

Paul Figas, Pro Se
8803 Ansonia Avenue
Cleveland, OH 44144


ATTORNEY FOR CHILD

Melinda J. Annandale
20033 Detroit Road
Annex F1-1
Rocky River, OH 44116


GUARDIAN AD LITEM

Carla L. Golubovic
P.O. Box 29127
Parma, OH 44129
ELODY J. STEWART, J.:

       {¶1} Appellant-mother, C.H., appeals from a juvenile division order that modified

a shared parenting plan for 13-year-old child J.F. by naming appellee-father P.F. as the

residential parent. Mother argues that the court abused its discretion by approving and

adopting factual findings by a magistrate because those findings were against the weight

of the evidence and contrary to a recommendation by the child’s guardian ad litem.

       {¶2} Our review of this appeal is severely hampered by the poor state of the

record. The first document in the record, according to the pagination assigned by the

clerk of the juvenile division, is the court’s order approving and adopting the magistrate’s

decision. The record does not include the original order establishing the rights and

responsibilities of the parents, the father’s substantive motion on child custody, or the

magistrate’s decision.    It is the mother’s duty, as the appellant, “to ensure the

completeness of the record on appeal.” Freedom Mtge. Corp. v. Petty, 8th Dist. No.

95834, 2011-Ohio-3067, ¶ 67, citing Shannon v. Shannon, 122 Ohio App.3d 346, 350,

701 N.E.2d 771 (9th Dist. 1997).         What is more, App.R. 16(A)(7) requires the

appellant’s brief to provide an argument with citations to “parts of the record on which

appellant relies.” Without the necessary documents in the record, the mother cannot

readily satisfy her App.R. 16(A)(7) obligation.

       {¶3} Viewing the facts on the limited record presented on appeal, it appears that

the parties’ rights were governed by the terms of a shared parenting agreement. The
magistrate’s decision, a copy of which was appended to the mother’s objections to that

decision, stated that the magistrate had two motions before her: the father’s “motion to

modify parental rights and responsibilities” and the mother’s “motion to modify shared

parenting.” The magistrate did not, however, modify the terms and conditions of the

shared parenting; instead, she stated that she was “terminating the Shared Parenting

Agreement currently in place.”      The court adopted the magistrate’s decision, using

identical language to that of the magistrate in stating it was “terminating” the shared

parenting agreement.

       {¶4} We take this language to indicate that the court considered the father’s

motion as one presented under R.C. 3109.04(E)(2)(c), which allows a court to terminate a

final shared-parenting decree merely upon the request of one or both of the parents or

whenever the court “determines that shared parenting is not in the best interest of the

children.” A ruling under this section does not require the court to make any finding that

there has been a change in circumstances. Beismann v. Beismann, 2d Dist. No. 22323,

2008-Ohio-984, ¶ 8. Instead, we determine only whether the court abused its discretion

by finding that a termination of the shared parenting plan was in the best interests of the

child using the factors set forth in R.C. 3109.04(F)(2). Clyburn v. Gregg, 4th Dist. No.

11CA3211, 2011-Ohio-5239, ¶ 24.

      {¶5} Even though this case was heard in the juvenile division, proceedings to

determine parent-child relationships are not conducted pursuant to the Rules of Juvenile

Procedure, see Juv.R. 1(C)(4), which might otherwise allow a hearing to be conducted in
an informal manner. Juv.R. 27(A). Instead, “where the custody of the child is disputed,

evidence must be taken and if testimony is taken it must be sworn.” White v. Thomas,

8th Dist. No. 72514, 1997 WL 767448 (Dec. 11, 1997), citing In re Fleming, 8th Dist.

No. 63911, 1993 WL 277186 (July 22, 1993).

       {¶6} To determine the child’s best interests, the court must consider the facts

presented at trial. The magistrate’s decision, as adopted by the court, stated that the

magistrate “completed the trial and heard final testimony.” Yet from the trial transcripts

presented to us, no “trial” occurred in any sense of that word. The magistrate heard no

sworn testimony from any witness nor did it accept any evidence. To the extent the

attorneys were allowed to speak, their participation was limited to minor interjections to

clarify points made by the parents. Counsel were not even permitted to summarize the

evidence or argue their clients’ positions. The magistrate even ignored objections.

       {¶7} What did transpire at the “hearing” was a lengthy counseling session with the

parties that devolved into the magistrate telling the parties how they should be raising a

defiant, underachieving 13-year-old girl with poor grades and too much self-esteem.

This kind of personal involvement might have been appropriate at pretrials in an effort to

find an amicable means of settling the parties’ differences, but it had no place as part of a

scheduled trial on substantive motions. The magistrate’s methods deprived the parties of

their right to have a decision based on evidence and sworn testimony. The only way to

correct this error is to sustain the mother’s assignment of error and remand for a full trial

on the merits.
      {¶8} A final point. The record transmitted to this court by the juvenile division is

unacceptable. It is inconceivable that the pagination provided by the clerk of the juvenile

division lists as the first document in the record on appeal the court’s judgment entry

approving and adopting the magistrate’s decision, without any reference to the

substantive motion that is the subject of controversy. Issues concerning the division of

parental rights and responsibilities are fraught with emotion for the parties. A court

system that complicates matters by failing to preserve a true and accurate record of the

proceedings undermines public confidence in the outcome of those proceedings.

      {¶9} This cause is reversed and remanded for proceedings consistent with this

opinion.

      It is ordered that appellant recover of   appellee her costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas — Juvenile Division to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR
