[Cite as In re S.L.M., 2019-Ohio-5403.]


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

IN RE: S.L.M.                                        C.A. No.      29482



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE No.   DN 18 09 0921

                                 DECISION AND JOURNAL ENTRY

Dated: December 31, 2019



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, D.D. (“Father”), appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that vacated its prior judgment that placed S.L.M. in the

legal custody of Father. This Court reverses and remands.

                                                I.

        {¶2}     Father and Mother are the biological parents of S.L.M., born February 24, 2009.

Mother has two other children who were parties to the trial court case, but they are not Father’s

children and are not parties to this appeal.

        {¶3}     On September 20, 2018, Summit County Children Services Board (“CSB”) filed a

complaint, alleging that S.L.M. was a neglected and dependent child because Mother was

abusing drugs and otherwise failing to meet the child’s needs. CSB sought an initial disposition

of temporary custody to Father, who did not live with Mother, with protective supervision by

CSB. Father was granted emergency temporary custody the same day.
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       {¶4}    S.L.M. was later adjudicated a neglected and dependent child and placed in the

temporary custody of Father. Shortly afterward, Father moved for legal custody of S.L.M. On

February 25, 2019, the trial court issued an order scheduling a review hearing for March 15,

2019, and explained that Father’s motion for legal custody would be considered at that hearing.

Because Mother was not then represented by counsel, the order further stated that “[i]t is

important that Mother immediately see the bailiff and submit an application for the appointment

of an attorney.”

       {¶5}    Upon the motion of the guardian ad litem, the hearing was continued until May 1,

2019. At the May 1 hearing before a magistrate, Mother appeared and requested a continuance

so she could obtain counsel. The magistrate orally denied Mother’s request for a continuance

and proceeded with the hearing on Father’s motion for legal custody. The magistrate did not file

a dispositional decision, however, until several weeks later.

       {¶6}    In the meantime, Mother requested and was appointed trial counsel. On May 31,

2019, the magistrate’s dispositional decision was filed. The decision, which was adopted the

same day by the trial court, placed S.L.M. in the legal custody of Father. It is unclear from the

record whether the magistrate’s decision was served on Mother’s newly appointed trial counsel.

       {¶7}    After the hearing but before the magistrate’s decision was filed, Mother filed pro

se objections to the magistrate’s decision. The Ohio Supreme Court has held that premature

objections to a magistrate’s decision are deemed filed as of the date of the magistrate’s decision

and should be considered on the merits. See Gordon v. Gordon, 98 Ohio St.3d 334, 2003-Ohio-

1069, syllabus. The trial court waited until after the magistrate’s decision was filed and allowed

Mother time to request a transcript of the hearing. Because Mother did not supplement her

objections with a transcript of the proceedings, the trial court did not consider her objections on
                                                 3


the merits. The trial court overruled Mother’s pro se objections and placed S.L.M. in the legal

custody of Father on June 25, 2019.

       {¶8}    Mother did not appeal from the trial court’s final judgment. Instead, on July 8,

2019, Mother’s appointed trial counsel filed a “Motion for Leave and Reconsideration.” Counsel

stated that she had not received a copy of the magistrate’s decision and initial trial court order

awarding Father legal custody and, therefore, she had not filed timely objections to the

magistrate’s decision. Counsel further asserted that it was not until she received the trial court’s

June 25 judgment overruling Mother’s pro se objections that she realized that the magistrate had

issued a decision on the legal custody motion. She gave no further details about the alleged

defect in service, nor did she attach an affidavit or any other evidence to support her assertions

that she had not been served with the magistrate’s decision. Counsel requested leave to have a

transcript prepared and to file proper objections to the magistrate’s legal custody decision.

       {¶9}    The trial court construed the motion as a motion for relief from judgment filed

pursuant to Civ.R. 60(B) and granted the motion. The trial court vacated the legal custody

judgment and granted Mother’s counsel time to obtain a transcript of proceedings and file

objections on behalf of Mother. Father appeals and raises one assignment of error.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING
       MOTHER’S MOTION FOR RELIEF FROM JUDGMENT UNDER CIV.R.
       60(B).

       {¶10} Father’s sole assignment of error is that the trial court erred in granting Mother

relief from judgment under Civ.R. 60(B).        Mother’s motion was captioned as a motion for

reconsideration and leave to file a transcript and objections to the magistrate’s decision. As
                                                  4


Father correctly asserts, a motion for reconsideration of a final trial court judgment is a nullity, as

“[t]he procedure for obtaining any relief from a judgment shall be by motion as prescribed in [the

Ohio Civil] rules.” Civ.R. 60(B). A trial court has authority to provide relief from a final

judgment only “by means of Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59

(motion for a new trial), and Civ.R. 60(B) (motion for relief from judgment).” Pitts v. Ohio

Dept. of Transp., 67 Ohio St.2d 378, 380 (1981).

       {¶11} Although Mother did not caption her motion as one filed pursuant to Civ.R.

60(B), the trial court was permitted to construe her motion “into whatever category necessary to

identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117

Ohio St.3d 153, 2008-Ohio-545, ¶ 12; see also Jones v. Jones, 4th Dist. Athens No. 14CA33,

2015-Ohio-3650, ¶ 13 (applying Schlee in a civil case). The trial court construed Mother’s

motion as one filed pursuant to Civ.R. 60(B).

       {¶12} To prevail on a Civ.R. 60(B) motion to vacate judgment, however, a movant must

demonstrate: (1) a meritorious defense or claim to present if relief is granted; (2) that he is

entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-(5); and (3) that the motion is

made within a reasonable time. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d

146, 150 (1976). The determination of whether relief should be granted is within the sound

discretion of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987).

       {¶13} Mother’s sole claim to support her motion was that her trial counsel was

appointed after the hearing, for the purpose of filing objections to the magistrate’s decision, but

that her counsel never received a copy of the decision. Based upon the alleged defect in service,

counsel sought leave to file objections to the magistrate’s decision.
                                                  5


       {¶14} On appeal, Father asserts that Mother could have raised the lack of proper service

issue on appeal and Civ.R. 60(B) cannot be used as a substitute for appeal. See, e.g., McWilliams

v. McWilliams, 9th Dist. Summit No. 29172, 2019-Ohio-2415, ¶ 12. A defect in service may be

raised on appeal if it can be demonstrated on the face of the trial court record. In this case,

however, the record is unclear about whether Mother’s counsel was served with the magistrate’s

decision, as it includes instructions from the trial court to serve all parties and their counsel, but

Mother’s counsel is not listed on the address list included in the record at that time.

       {¶15} This Court has recognized that if a party otherwise complies with the

requirements of GTE Automatic and presents evidence outside the record to demonstrate that her

failure to meet a filing deadline was caused by of a lack of notice of a trial court’s order, Civ.R.

60(B) relief may be appropriate. See Kowalski v. Smith, 9th Dist. Wayne No. 11CA0056, 2012-

Ohio-2974, ¶ 14. Mother would not have been able to obtain relief on appeal if her argument

relied on evidence outside the record. See, e.g., In re T.R., 9th Dist. Summit No. 28619, 2018-

Ohio-1144, ¶ 8 (emphasizing that this Court’s appellate review is necessarily confined to the trial

court record).

       {¶16} Mother did not support her motion with any detailed explanation about her failure

to receive timely service, however, nor did she attach any evidence to demonstrate that her

counsel was not served.      “Although a movant is not required to support its motion with

evidentiary materials, the movant must do more than make bare allegations that he or she is

entitled to relief.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996). Mother’s motion

included nothing more than bare allegations that her trial counsel was not timely served with the

magistrate’s decision.
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       {¶17} Consequently, the trial court erred in granting Mother relief under Civ.R. 60(B)

without anything other than bare allegations to support her motion. For these reasons, Father’s

assignment of error is sustained.

                                                III.

       {¶18} For the reasons explained above, the assignment of error is sustained.           The

judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed and

remanded for proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       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 Summit, 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 Appellee.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
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CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.

DENISE FERGUSON, Attorney at Law, for Appellee.

ANNETTE POWERS, Guardian ad Litem.
