[Cite as Hull v. Hull, 2012-Ohio-970.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


DIANA HULL NKA ORMAN                           :     JUDGES:
                                               :
                                               :     Hon. John W. Wise, P.J.
                        Plaintiff-Appellant    :     Hon. Julie A. Edwards, J.
                                               :     Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :     Case No. 2011CA00155
RICHARD HULL                                   :
                                               :
                                               :
                       Defendant-Appellee      :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Domestic Relations Case
                                                   No. 2002DR00593


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            February 27, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

ARNOLD F. GLANTZ                                     DAVID S. AKE
4883 Dressler Rd. NW                                 101 Central Plaza South
Canton, OH 44718                                     Suite 600
                                                     Canton, OH 44702
[Cite as Hull v. Hull, 2012-Ohio-970.]


Delaney, J.

        {¶1} Plaintiff-Appellant Diana Orman appeals the June 16, 2011 decision of

the Stark County Court of Common Pleas, Domestic Relations Division. Defendant-

Appellee is Richard Hull.

                            STATEMENT OF THE FACTS AND CASE

        {¶2} The parties were divorced through a Nunc Pro Tunc Judgment Entry of

Divorce on January 15, 2003. There was one child born as issue of the marriage, I.H.,

born September 26, 1998. The divorce decree named Appellant as the residential

parent.

        {¶3} On April 1, 2010, Appellee filed a Motion for Change of Custody or

Granting of Shared Parenting. A guardian ad litem was appointed for I.H. on April 27,

2010.

        {¶4} A hearing was set on the motion on June 15, 2011.           At the hearing

before the magistrate, the parties did not present any evidence or exhibits other than

the GAL written report and recommendations filed on June 15, 2011 and Stipulations

of Fact, which were read into the record. The stipulations, as relevant to this appeal,

were as follows: (1) Appellee is not the biological father of I.H.; (2) Appellee did not

appear at the final divorce hearing; (3) Appellant testified at the final divorce hearing

one child was born as issue of the marriage; (4) the GAL did not allege Appellant was

unsuitable or an unfit parent to I.H.; (5) no custody determination had been made

regarding I.H. since the final divorce decree; and (6) the parties stipulate to the GAL

report as filed.
Stark County, Case No. 2011CA00155                                                          3


       {¶5} The GAL report recommended it was in I.H.’s best interest that Appellee

be named the residential parent and legal custodian.

       {¶6} On June 15, 2011, the magistrate issued an order stating she would take

the issue of custody under advisement.

       {¶7} The magistrate’s decision, filed on June 16, 2011, recommended it was

in the child’s best interest that custody be granted to Appellee.

       {¶8} The magistrate’s decision contained the Civ.R. 53 language noting that a

party could file written objections to the order within fourteen days of the filing of a final

decision.

       {¶9} Beneath the Civ.R. 53 statement, there included the following language

with the trial court judge’s signature on June 16, 2011:

       {¶10} “The Court, having made an independent analysis of the issues and the

applicable law, hereby approves and adopts the Magistrate’s Decision and orders it to

be entered as a matter of record.”

       {¶11} The record shows that Appellant did not file written objections to the

magistrate’s decision but filed a direct appeal of the June 16, 2011 decision.

       {¶12} Appellant raises two Assignments of Error:

       {¶13} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO

APPLY THE UNSUITABILITY TEST BEFORE CHANGING CUSTODY OF [I.H.]

FROM HIS BIOLOGICAL MOTHER TO A NONPARENT.

       {¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

THERE WAS A CHANGE OF CIRCUMSTANCES WARRANTING A CHANGE OF

CUSTODY.”
Stark County, Case No. 2011CA00155                                                       4


       {¶15} Before we reach the merits of Appellant’s appeal, we first address

Appellee’s argument that Appellant did not file objections to the magistrate’s decision

before filing her appeal of the magistrate’s decision, thereby waiving her arguments on

appeal.

       {¶16} Under Civ.R. 53(D)(3)(b)(i), a party may file written objections to a

magistrate’s decision within fourteen days of the filing of the decision. In this case, the

decision was filed on June 16, 2011. The trial court judge, however, approved and

adopted the magistrate’s decision on the same day. This is permissible under Civ.R.

53(D)(4)(e)(i), which states “[a] court may enter judgment either during the fourteen

days permitted by Civ.R. 53(D)(3)(b)(i) for the filing of objections to a magistrate’s

decision or after the fourteen days have expired.”

       {¶17} The immediate signature by the trial court judge approving and adopting

the magistrate’s decision does not bar the parties from filing written objections to the

magistrate’s decision. See Wood Manor Furniture, Inc. v. Miken, Inc., 5th Dist. No.

2000CA00024, 2000 WL 1158752 (Aug. 14, 2000). “If the court enters a judgment

during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing of objections,

the timely filing of objections to the magistrate’s decision shall operate as an automatic

stay of execution of the judgment until the court disposes of those objections and

vacates, modifies, or adheres to the judgment previously entered.”                  Civ.R.

53(D)(4)(e)(i).

       {¶18} Under Civ.R. 53, regardless of the timeframe of the judge’s approval and

adoption of the magistrate’s decision, written objections to the magistrate’s decision

are necessary to preserve the issues for appeal.           Civ.R. 53(D)(3)(b)(iv) states,
Stark County, Case No. 2011CA00155                                                        5


“[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 required by Civ.R. 53(D)(3)(b).”

          {¶19} In this case, the June 16, 2011 magistrate’s decision contains findings of

facts and conclusions of law upon which Appellant bases her current appeal. The trial

court’s immediate approval and adoption of the magistrate’s decision does not obviate

the need for written objections to the magistrate’s decision so that Appellant can

assign as error on appeal the trial court’s adoption of that finding or conclusion, absent

plain error. In re J.K., 4th Dist. No. 11CA3269, 2012-Ohio-214.

          {¶20} Accordingly, we review Appellant’s Assignments of Error under the plain

error doctrine. “[I]n appeals of civil cases, the plain error doctrine is not favored and

may be applied only in the extremely rare case involving exceptional circumstances

where error, to which no objection was made at the trial court, seriously affects the

basic fairness, integrity, or public reputation of the judicial process, thereby challenging

the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio

St.3d 116, 679 N.E.2d 1099 (1997).

                                             I.

          {¶21} Appellant argues in her first Assignment of Error the trial court applied

the incorrect legal standard in determining the custody of I.H. The trial court utilized

R.C. 3109.04 and the best interest of the child standard to determine whether to

modify the divorce decree allocating parental rights to Appellant. R.C. 3109.04(E)(1)

states:
Stark County, Case No. 2011CA00155                                                      6


       {¶22} “The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that have arisen

since the prior decree or that were unknown to the court at the time of the prior

decree, that a change has occurred in the circumstances of the child, the child's

residential parent, or either of the parents subject to a shared parenting decree, and

that the modification is necessary to serve the best interest of the child. In applying

these standards, the court shall retain the residential parent designated by the prior

decree or the prior shared parenting decree, unless a modification is in the best

interest of the child and one of the following applies:

       {¶23} “***

       {¶24} “(iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child.”

       {¶25} Appellant states the trial court should have made an unsuitability

determination, rather than considering the best interests of the child, because the

custody dispute is between a natural parent and a nonparent. The parties stipulated

Appellee is not the biological father of I.H. Appellant cites to In re Perales, 52 Ohio

St.2d 89, 369 N.E.2d 1047 (1977), for the holding that in a custody dispute between a

parent and nonparent, the juvenile court must make a determination of parental

unsuitability before awarding custody to a nonparent in a legal custody proceeding.

Id. at syllabus.

       {¶26} Upon review of the proceedings in this case, we find the trial court

utilized the correct standard for determining custody. Child custody disputes under

Ohio law fall within the coverage of one of two statutes, depending on the
Stark County, Case No. 2011CA00155                                                        7

circumstances – R.C. 3109.04 and 2151.23. In re Hockstock, 98 Ohio St.3d 238,

2002-Ohio-7208, 781 N.E.2d 971, ¶13.          R.C. 2151.23(A)(2) grants juvenile courts

exclusive original jurisdiction “to determine custody of any child not a ward of another

court of this state.” Id. at ¶15. R.C. 3105.011 gives domestic relations courts the

jurisdiction “appropriate to the determination of all domestic relations matters.” Id. at

¶14. R.C. 3109.04 dictates the rules and procedures for domestic relations courts to

follow in child custody cases. Id.

       {¶27} Irrespective of Appellant’s arguments as to the parental status of

Appellee, the present custody dispute arises from a divorce proceeding under the

jurisdiction of the domestic relations court through R.C. 3109.04. R.C. 3109.04(A)

provides that “in any proceeding pertaining to the allocation of parental rights and

responsibilities for the care of a child, * * * the court shall allocate the parental rights

and responsibilities for the care of the minor children of the marriage.” (Emphasis

added.) In the divorce decree between Appellant and Appellee, the decree stated I.H.

was born as issue of the marriage. Accordingly, a custody determination pursuant to

R.C. 3109.04 is applicable to the present case because the custody question arises

from a domestic relations matter. The trial court correctly utilized the best interests of

the child standard found in R.C. 3109.04. In re Hockstock at ¶26.

       {¶28} Appellant’s first Assignment of Error is overruled.
Stark County, Case No. 2011CA00155                                                     8


                                           II.

       {¶29} Appellant argues in her second Assignment of Error the trial court

abused its discretion in finding there was a change of circumstances warranting the

change of custody. We disagree.

       {¶30} In the case of In the Matter of McLaughlin Children, 5th Dist. No. 2002-

CA-00316, 2003-Ohio-761, this Court held a trial court has broad discretion in matters

concerning the allocation of parental rights and responsibilities and we will not disturb

its decision on appeal absent an abuse of discretion. Masters v. Masters, 69 Ohio

St.3d 83, 85, 630 N.E.2d 655 (1994). Abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude was arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983).

       {¶31} The trial court found there had been a change of circumstances

warranting a change in custody.        The magistrate’s decision found “the child’s

relationship with his parents has changed, his relationship with Plaintiff and stepfather

is strained, and he does not feel included in Plaintiff’s family. Plaintiff has remarried

and has two children from that marriage.” (Magistrate’s Decision, June 16, 2011.)

       {¶32} Because Appellant failed to file written objections to the magistrate’s

findings of fact, Appellant cannot assign this as an error for appeal, other than under

plain error review.

       {¶33} Considering the standard set under Goldfuss, we find no substantial

error or exceptional example of abuse of discretion in the trial court’s determination as

to the change of circumstances.
Stark County, Case No. 2011CA00155                                         9


       {¶34} Appellant’s second Assignment of Error is overruled.

       {¶35} The judgment of the Stark County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Delaney, J.

Wise, P.J. and

Edwards, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. JOHN W. WISE



                                      HON. JULIE A. EDWARDS
[Cite as Hull v. Hull, 2012-Ohio-970.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

DIANA HULL NKA ORMAN                            :
                                                :
                                                :
                        Plaintiff-Appellant     :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
RICHARD HULL                                    :
                                                :
                                                :   Case No. 2011CA0155
                       Defendant-Appellee       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs

assessed to Appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. JOHN W. WISE



                                              HON. JULIE A. EDWARDS
