[Cite as Hart v. Spenceley, 2013-Ohio-653.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




SARAH B. HART,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2011-08-165

                                                    :          OPINION
   - vs -                                                       2/25/2013
                                                    :

JEFFREY M. SPENCELEY,                               :

        Defendant-Appellant.                        :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                         DOMESTIC RELATIONS DIVISION
                             Case No. DR 08050638



Courtney N. Caparella-Kraemer, Kari Yeomans, 4841 Rialto Road, Suite A, West Chester,
Ohio 45069, for plaintiff-appellee

Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, for defendant-
appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Jeffery M. Spenceley (father), appeals a decision of the

Butler County Court of Common Pleas, Domestic Relations Division, modifying the terms of a

parenting decree and finding plaintiff-appellee, Sarah B. Hart (mother), in contempt of the

parenting decree on one occasion. For the reasons stated below, we affirm.

        {¶ 2} Father and mother were married on July 11, 2005. During the marriage, the
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couple had one child, who was born in 2007. Upon their divorce in March 2009, a parenting

decree was issued. Under the terms of the decree, mother was deemed residential parent,

with father receiving parenting time on alternating weekends and on Monday evenings

following weekends father did not see the child. Additionally, father, a high school football

coach, was to receive parenting time one evening through the week except during football

season.

       {¶ 3} In February 2011, father filed a motion for contempt against mother and a

motion to modify parenting time. In his contempt motion, father cited several instances

where mother allegedly failed to abide by the parenting time schedule. Father also requested

attorney fees and court costs. Shortly thereafter, mother filed a motion to modify child

support and to restrict father's parenting time.

       {¶ 4} A hearing was held before a magistrate regarding all the motions. The

magistrate found mother in contempt of the parenting decree on three occasions and granted

father $500 in attorney fees and court costs. Additionally, the magistrate granted several of

father's requests to modify parenting time and denied all of mother's motions. Mother filed

objections to the magistrate's decision. The trial court conducted an independent review of

the record and sustained several of mother's objections. The court found mother in contempt

on only one occasion and awarded father $100 for court costs but overruled the award of

attorney fees for the contempt motion. The court reasoned that an award of attorney fees

was not appropriate because father did not submit any evidence regarding the fees he

incurred in prosecuting the contempt motions. Additionally, the court denied many of father's

requests to modify parenting time. The court also denied mother's requests to modify child

support and to restrict father's parenting time.

       {¶ 5} Father now appeals, raising three assignments of error.

       {¶ 6} Assignment of Error No. 1
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       {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT REVERSED THE MAGISTRATE'S DECISION IN THE ABSENCE

OF PROPER OBJECTIONS FROM THAT DECISION.

       {¶ 8} Assignment of Error No. 2

       {¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT MODIFIED THE MAGISTRATE'S DECISION.

       {¶ 10} We will address father's first two assignments of error together as they both

concern the scope of a trial court's review of a magistrate's decision. Father contends that

pursuant to Civ.R. 53, when a party files general objections to a magistrate's decision, the

trial court is precluded from engaging in a de novo review. Instead, when a party files

general objections, the trial court can modify the magistrate's decision only if it finds an error

of law or other defect evident on the face of the decision. Father also argues that a trial court

should defer to a magistrate's determination regarding parenting issues when the magistrate

is the sole fact-finder to observe the parties testify.

       {¶ 11} Where a matter is referred to a magistrate, the magistrate and the trial court

must conduct the proceedings in conformity with the powers and procedures conferred by

Civ.R. 53. A magistrate may issue a decision on a matter that is referred to it by a trial court,

subject to the scope of the court's referral. Civ.R. 53(D)(3)(a); Donoforio v. Whitman, 191

Ohio App.3d 727, 2010-Ohio-6406, ¶ 17 (7th Dist.). However, the magistrate's decision is not

a final judgment. A trial court must act on a magistrate's decision in order to give the

recommendation the force of law. Civ.R. 53(D)(4)(a).

       {¶ 12} As the First District has recognized, "[m]agistrates and their powers are wholly

creatures of rules of practice and procedure promulgated by the Supreme Court." Yanket v.

Coach Builders Limited, Inc., 1st Dist. No. C-060601, 2007-Ohio-5126, ¶ 9. A magistrate's

exercise of such broad powers is intended only "to assist courts of record." Civ.R. 53(C)(1).
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A magistrate's "oversight of an issue or issues, even an entire trial, is not a substitute for the

[trial court’s] judicial functions but only an aid to them." (Emphasis sic.) Yanket at ¶ 9, citing

Hartt v. Munobe, 67 Ohio St.3d 3, 6 (1993). It is the primary duty of the trial court, and not

the magistrate, to act as a judicial officer. Id.

       {¶ 13} A trial court still retains the ability to employ its own judgment in a case even if it

refers a matter to a magistrate. See Koeppen v. Swank, 12th Dist. No. CA2008-09-234,

2009-Ohio-3675, ¶ 37. Civ.R. 53 provides that when a magistrate issues a decision, parties

have 14 days to file specific, particularized objections. Civ.R. 53(D)(3)(b)(i). If objections are

timely filed, a trial court must conduct an independent review of those objections. Civ.R.

53(D)(4)(d).   If no objections are filed, a trial court is permitted to simply adopt the

magistrate's decision as part of its judgment unless it determines that there is an error of law

or other defect on the face of the decision. Civ.R. 53(D)(4)(c). A trial court can treat a party's

objection that is not specific or particular as if an objection was not filed at all and the court

may affirm the magistrate's decision without considering the merits of the objection. Solomon

v. Solomon, 157 Ohio App.3d 807, 2004-Ohio-2486 (7th Dist.), ¶ 15.

       {¶ 14} However, the filing or failure to file objections does not prevent the trial court

from reviewing the magistrate's decision. Civ.R. 53(D)(4)(b) 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.
               (Emphasis added.)

Thus, although a trial court can treat a party's general objections to a magistrate's decision as

if no objection was filed at all, the court is not constrained to this level of review. Solomon at

¶ 15. Instead, a trial court is free to engage in an independent review of the record. Id.

       {¶ 15} We find that the trial court did not err in conducting an independent review of

the magistrate's decision and making credibility and factual determinations that were contrary
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to the magistrate's decision. Whether or not mother filed general objections, the trial court

had the inherent power to independently review the record. We are not persuaded by the

cases cited by father as these simply stand for the proposition that a trial court may treat a

failure to file a specific objection the same as the failure to file any objections to a

magistrate's decision. In re C.P., 12th Dist. No. CA2010-12-025, 2011-Ohio-4563, ¶ 34;

Wallace v. Willoughby, 3rd Dist. No. 17-10-15, 2011-Ohio-3008, ¶ 20. These cases do not

mean that a trial court is prohibited from conducting an independent review of the

magistrate's decision when specific objections are not filed. Additionally, the trial court can

make its own factual determinations because as the ultimate finder of fact, it "should not

adopt the findings of the [magistrate] unless the trial court fully agrees with them." Rapp v.

Pride, 12th Dist. No. CA2009-12-311, 2010-Ohio-3138, ¶ 14, citing Inman v. Inman, 101 Ohio

App.3d 115, 118 (2d Dist.1995).

       {¶ 16} Therefore, the trial court did not err in conducting an independent review of the

magistrate's decision and not deferring to the magistrate's credibility and factual

determinations. Father's first and second assignments of error are overruled.

       {¶ 17} Assignment of Error No. 3

       {¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT VACATED THE AWARD OF ATTORNEY FEES TO APPELLANT.

       {¶ 19} In father's third assignment of error, he argues that the trial court erred when it

vacated the award of attorney fees. As in the first assignment of error, father argues that the

trial court was prohibited from engaging in an independent review of the record because

mother's objections to the magistrate's decision did not specifically address attorney fees. As

discussed above, Civ.R. 53 expressly allows a trial court to adopt, reject, or modify a

magistrate's decision whether or not a party files objections. Therefore, the trial court was

authorized to review the magistrate's award of attorney fees to father.
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       {¶ 20} Father also challenges the trial court's determination to overrule the

magistrate's award of attorney fees. The trial court found that it could not award attorney

fees because father did not present sufficient evidence regarding the amount of attorney fees

he incurred. The court did award father $100 in court costs.

       {¶ 21} R.C. 3109.051(K) governs the issuance of attorney fees when a party is found

in contempt of court for failing to comply with a parenting time order. The statute provides

that trial courts shall award "reasonable" attorney fees and court costs "arising out of the

contempt proceedings against the person." The award of attorney fees is mandatory upon a

finding of contempt under R.C. 3109.051. Hall v. Nazario, 9th Dist. No. 07CA009131, 2007-

Ohio-6401, ¶ 15. Rapp, 12th Dist. No. CA2009-12-311, 2010-Ohio-3138, ¶ 32. "The statute

is phrased in the imperative and clearly pre-empts the judicial discretion that once controlled

this area. It * * * requires that costs and reasonable attorney fees for the injured party be

assessed against the contemnor, irrespective of any other sanction that might be imposed."

Huff v. Huff, 2nd Dist. No. CA14823, 1995 WL 600012 (Oct. 13, 1995), quoting In Re

Skinner, 4th Dist. No. 93CA547 (Mar. 23, 1994).

       {¶ 22} The award of attorney fees must also be "reasonable." R.C. 3109.051(K).

Reasonableness for purposes of calculating attorney fees is a question of fact and the trial

court must have evidence before it probative of that issue in order to make the finding. Rapp

at ¶ 32. Reasonable attorney fees must be based upon actual services performed by the

attorney and upon the value of those services. Vanderventer v. Vandeventer, 132 Ohio

App.3d 762 (12th Dist.1999). We review the trial court's valuation of attorney fees for an

abuse of discretion. Rapp at ¶ 32.

       {¶ 23} Loc.R. DR 30(E)(3) for the Butler County Domestic Relations Court provides

that a bill for attorney fees will be deemed "fair and reasonable" so long as it is accompanied

with an affidavit from the attorney and submitted to opposing counsel within seven days after
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trial. The rule goes on to state that "[f]ailure to comply with the provisions of this rule will

result in the denial of a request for attorney fees, unless jurisdiction to determine the issue of

fees is expressly reserved in any order resulting from the hearing." Id.

       {¶ 24} At the hearing before the magistrate, father testified that his total attorney fees

for prosecuting the contempt motions and the motion to modify parenting time amounted to

between $1,400 and $1,500. Father presented no other evidence documenting his attorney

fees or the portions of the fees related to the contempt motions. The magistrate awarded

court costs and attorney fees to father in the amount of $500. However, the trial court

overruled this award and ordered mother to reimburse father $100 for the filing fee

associated with the contempt motion. The court reasoned that it could not determine a

reasonable fee for the one count of contempt against mother because father failed to present

any evidence besides his testimony as to the attorney fees he incurred.

       {¶ 25} We find that the trial court did not err when it declined to grant father attorney

fees. Although the language in R.C. 3109.051 is mandatory, attorney fees must also be

reasonable and based on the actual services performed by the attorney and the value of

those services. It is axiomatic that a trial court cannot make a finding when there is no

evidence in the record. In this case, father not only failed to present documents to verify the

amount of attorney fees he incurred, his testimony did not specify what portion of the total

amount of attorney fees were related to the contempt motions. Therefore, it was impossible

for the court to determine an award of attorney fees. However, while the court did not grant

attorney fees it did award father's court costs in filing the contempt motion. Therefore, we

find the court did not violate R.C. 3109.051.

       {¶ 26} Father's third assignment of error is overruled.

       {¶ 27} Judgment affirmed.



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S. POWELL and M. POWELL, JJ., concur.




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