[Cite as McClain v. McClain, 2011-Ohio-6101.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY

Tamara McClain,                       :    Case No. 10CA53
                                      :
      Plaintiff-Appellee,             :
                                      :    DECISION AND
      v.                              :    JUDGMENT ENTRY
                                      :
Lawrence McClain,                     :
                                      :    RELEASED 11/17/11
      Defendant-Appellant.            :
______________________________________________________________________
                            APPEARANCES:1

Lawrence McClain, Nelsonville, Ohio, appellant, pro se.
______________________________________________________________________
Per Curiam

          {¶1}    Lawrence McClain appeals the trial court’s judgment in this divorce action,

contending that the court erred in its division of marital property because the court did

not divide Mrs. McClain’s 2009 tax refund. The trial court adopted a magistrate’s

decision that failed to classify this refund as marital or separate property and failed to

allocate the refund. Because a trial court has a mandatory duty to classify and divide

property in a divorce proceeding, we find that the court’s omission constitutes plain

error, reverse the decision, and remand for further proceedings.

                                                 I. Facts

          {¶2}    Mrs. McClain filed for divorce in 2009. In January 2010, the magistrate

issued a temporary order stating: “[T]he Magistrate hereby ORDERS that for tax year

2009 (filing date of April, 2010) the parties cooperate and work with C & J Tax Service

in order to utilize the filing status that is of most benefit to both parties. Any tax refund

shall be divided equally between the parties and the parties shall each be responsible
1
    Tamara McClain has not entered an appearance or otherwise participated in this appeal.
Athens App. No. 10CA53                                                                      2


for one-half of any tax liability.” (Emphasis in original). Later, the magistrate granted

Mrs. McClain “the tax exemptions for the parties[’] minor children for the purposes of

federal, state and local tax returns for calendar year 2009.” Subsequently, Mr. McClain

filed a motion for contempt complaining that Mrs. McClain had not “completed 2009

taxes in compliance with the order of the Honorable Court, dated January 12, 2010.”

The magistrate set a show cause hearing and the final hearing on the complaint for

divorce for the same date.

       {¶3}   At the hearing, Mr. McClain attempted to argue that Mrs. McClain violated

a court order by claiming the exemptions for the children, but the magistrate pointed out

her prior order allowing Mrs. McClain to do so. Mrs. McClain’s attorney indicated that

she received a tax refund check for 2009, and Mrs. McClain testified that she wanted to

keep the refund. Mr. McClain asked the magistrate if she would be dividing “the taxes”

at the hearing, presumably in reference to the 2009 refund, because he was in a

“desperate” financial situation. The magistrate responded, “I’ll take that into

consideration * * * and it will be set forth in my recommendations.” However, the

magistrate did not address the 2009 tax refund in her decision.

       {¶4}   Mr. McClain filed the following objection to the decision:

       Now comes Defendant and moves this honorable Court to: have a hearing
       on said matter Defendant has been treated unfairly and unjustly, and feels
       magistrate has sided plainly with the Plaintiff, and has made decision
       based upon untruthful testimony of Plaintiff and Gaurdian [sic] Anna
       Mason, who Defendant feels is not qualified to make decisions and that
       property has not been divided equal and debts [sic], and Defendant feels
       these were made because Defendant was without legal council [sic] and
       resources to hire legal council [sic].

In response, the trial court noted that Mr. McClain “states the property was not divided

equally, but does not suggest how it should have been divided” and that he “did not
Athens App. No. 10CA53                                                                         3


provide any supportive affidavits or a transcript for the Court to consult to see if there

was testimony to support his basic contentions.” The court overruled Mr. McClain’s

objections and adopted the magistrate’s decision. This appeal followed.

                                  II. Assignment of Error

       {¶5}   Mr. McClain assigns one error for our review:

       The Magistrate failed to divide the 2009 tax refund.

                                      III. Tax Refund

       {¶6}   In his sole assignment of error, Mr. McClain complains that the magistrate

– whose decision the trial court adopted – failed to divide Mrs. McClain’s 2009 tax

refund. Initially, we must address the standard of review. Civ.R. 53(D)(3)(b)(i) provides

that a party “may file written objections to a magistrate’s decision within fourteen days of

the filing of the decision * * *.” However, “[a]n objection to a magistrate’s decision shall

be specific and state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii).

Moreover, “[e]xcept for a claim of plain error, a party shall not assign as error on appeal

the court’s adoption of any factual finding or legal conclusion, whether or not specifically

designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless

the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).”

Civ.R. 53(D)(3)(b)(iv).

       {¶7}   Although Mr. McClain filed an objection to the magistrate’s decision, he

only vaguely argued that the “property has not been divided equal [sic] * * *.” He did not

specifically challenge the magistrate’s failure to address the tax refund. Therefore, Mr.

McClain has forfeited all but plain error as to this issue. See Burriss v. Burriss,

Lawrence App. Nos. 09CA21 & 10CA11, 2010-Ohio-6116, at ¶28.
Athens App. No. 10CA53                                                                       4

       {¶8}   “Although in criminal cases ‘[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court,’

Crim.R. 52(B), no analogous provision exists in the Rules of Civil Procedure. The plain

error doctrine originated as a criminal law concept. In applying the doctrine of plain

error in a civil case, reviewing courts must proceed with the utmost caution, limiting the

doctrine strictly to those extremely rare cases where exceptional circumstances require

its application to prevent a manifest miscarriage of justice, and where the error

complained of, if left uncorrected, would have a material adverse effect on the character

of, and public confidence in, judicial proceedings.” Goldfuss v. Davidson, 79 Ohio St.3d

116, 121, 1997-Ohio-401, 679 N.E.2d 1099.

       {¶9}   Mr. McClain essentially complains that the trial court could not have

equitably divided the former couple’s property unless it divided the 2009 tax refund. Mr.

McClain correctly notes that the magistrate issued a temporary order stating that any

refund for the 2009 tax year “shall be divided equally between the parties.” However,

that order was interlocutory, and “[i]n a domestic relations action, interlocutory orders

are merged within the final decree, and the right to enforce such interlocutory orders

does not extend beyond the decree, unless they have been reduced to a separate

judgment or they have been considered by the trial court and specifically referred to

within the decree.” Colom v. Colom (1979), 58 Ohio St.2d 245, 389 N.E.2d 856, at

syllabus. Because the decree did not mention the temporary order regarding the tax

refund and the order was never reduced to a separate judgment, it is no longer

enforceable. So by default, it appears that Mrs. McClain has retained the entire refund.
Athens App. No. 10CA53                                                                        5


       {¶10} However, as Mr. McClain also points out in his brief, the magistrate’s

decision “states nothing about the tax return.” (Appellant’s Br. 6). “In divorce

proceedings, the court shall * * * determine what constitutes marital property and what

constitutes separate property. In either case, upon making such a determination, the

court shall divide the marital and separate property equitably between the spouses * *

*.” R.C. 3105.171(B). Thus the court has a mandatory duty to classify and divide

marital and separate property. See Lowe v. Lowe, Pickaway App. No. 10CA30, 2011-

Ohio-3340, at ¶¶5-6. Moreover, “[i]n any order for the division or disbursement of

property or a distributive award made pursuant to this section, the court shall make

written findings of fact that support the determination that the marital property has been

equitably divided * * *.” R.C. 3105.171(G).

       {¶11} Here, the trial court did not classify the tax refund as marital or separate

property, and as Mr. McClain points out, the court made no mention in the divorce

decree of how the tax refund should be divided despite its mandatory duty to do so.

Therefore, we find the trial court committed plain error when it failed to classify the tax

refund as marital or separate property and allocate it in the divorce decree.

Accordingly, we sustain the sole assignment of error, reverse the trial court’s judgment,

and remand the matter to the trial court to classify the refund and equitably divide all the

McClains’ property, including the refund. However, we note that contrary to Mr.

McClain’s contention, even if the trial court concludes the refund constitutes marital

property, the court need not necessarily divide the refund equally to effectuate an

equitable division of property. See R.C. 3105.171(C)(1) (explaining that generally the

division of marital property “shall be equal” but if “an equal division of marital property
Athens App. No. 10CA53                                                                      6


would be inequitable, the court shall not divide the marital property equally but instead

shall divide it between the spouses in the manner the court determines equitable”).

                                                                JUDGMENT REVERSED
                                                               AND CAUSE REMANDED.
Athens App. No. 10CA53                                                                    7


Harsha P.J., Dissenting:

       {¶12} As the trial court pointed out in the record, appellant’s objection to the

magistrate’s decision was very general and did not explicitly address the tax refund.

Based upon the generic nature of the objection, the trial court would have been hard

pressed to know that Mr. McClain was objecting to the failure to divide the tax refund.

Thus, I cannot find plain error here.
Athens App. No. 10CA53                                                                     8


                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
Harsha, P.J.: Dissents with Opinion.

                                  For the Court


                                  BY: _____________________________
                                      Peter B. Abele, Judge


                                  BY: _____________________________
                                      Matthew W. McFarland, Judge


                                  BY: _____________________________
                                      William H. Harsha, Presiding Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
