[Cite as In re B.B., 2011-Ohio-2928.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95872




                                         IN RE: B.B.
                                        A Minor Child

                                   Appeal by Mother



                               JUDGMENT:
                         REVERSED AND REMANDED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. CU 04110521


        BEFORE:             Boyle, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED:                       June 16, 2011
ATTORNEY FOR APPELLANT MOTHER

George W. MacDonald
848 Rockefeller Building
614 Superior Avenue, N.W.
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE FATHER

Kenneth K. McElroy
10205 Eliot Avenue, Suite 1
Cleveland, Ohio 44104

GUARDIAN AD LITEM

Christopher R. Lenahan
2035 Crocker Road
Westlake, Ohio 44145




MARY J. BOYLE, P.J.:

       {¶ 1} Appellant T.B.-P.1 (“mother”) appeals the                trial court’s judgment

adopting the magistrate’s decision, overruling her objections, and granting

appellee A.L.’s (“father”) motion to modify custody of their minor daughter,

B.B. She raises a single assignment of error:

       {¶ 2} “The trial court erred in approving and entering judgment on a

magistrate’s decision before a transcript could be obtained.”


            The parties are referred to by their initials or title in accordance with this court’s
       1


established policy regarding non-disclosure of identities in juvenile cases.
      {¶ 3} Finding merit to the appeal, we reverse and remand for further

proceedings.

                           Procedural History and Facts

      {¶ 4} On March 24, 2010, father filed a motion to modify custody,

seeking to be named the primary residential parent of B.B. Father alleged

that the living conditions in the mother’s home had changed to the detriment

of B.B., that mother was failing to ensure that B.B. attended school, and that

mother was not complying with the court’s visitation order. A hearing was

held before a magistrate on September 2, 2010. Following the hearing, the

magistrate issued her written decision on September 8, 2010, granting the

father’s motion and designating him as the primary residential parent and

legal custodian. Nine days later, mother, pro se, timely filed her objections

on September 17, 2010, raising issues with some of the magistrate’s factual

findings.   Four days after filing her objections, on September 21, 2010,

mother filed two additional motions: (1) a request of the transcript of

proceedings at the state’s cost; and (2) leave to file supplemental objections

once the transcript was ready. The following day, on September 22, 2010,

the trial court overruled the mother’s objections and adopted the magistrate’s

decision.   The trial court also issued a more detailed judgment entry on

September 23, 2010, adopting the magistrate’s decision and setting forth its
specific reasons for doing so.

      {¶ 5} On September 24, 2010, the magistrate ruled that mother’s

motions for the preparation of the transcript at state’s costs and leave to file

supplemental objections were moot because the trial court had already

overruled the objections.

      {¶ 6} Mother appeals, raising the following sole assignment of error:

      {¶ 7} “The trial court erred in approving and entering judgment on a

magistrate’s decision before a transcript could be obtained.”

                                 Civ.R. 53 — Transcript

      {¶ 8} Mother argues that the trial court erred in ruling on her

objections prior to reviewing the transcript when mother had specifically filed

a request for the transcript within the governing time period. She further

contends that her objections sufficiently raised a manifest weight of the

evidence challenge, and therefore the trial court abused its discretion in

overruling her objections without first reviewing the transcript. We agree.

      {¶ 9} Civ.R. 53 governs the procedure for filing objections to a

magistrate’s decision. Relevant to this appeal, Civ.R. 53(D)(3)(b)(iii) provides

that “[t]he objecting party shall file the transcript or affidavit with the court

within thirty days after filing objections unless the court extends the time in

writing for preparation of the transcript or other good cause. If a party files
timely objections prior to the date on which a transcript is prepared, the party

may seek leave of court to supplement the objections.”       Thus, under this

provision, mother had thirty days to file the transcript in support of her

objections.   The trial court, however, adopted the magistrate’s decision on

September 22, 2010 and later found mother’s request for the transcript to be

moot prior to the expiration of the thirty days. We find this to be erroneous.

      {¶ 10} In addressing this same issue, Ohio appellate courts have

repeatedly recognized that a trial court errs in ruling on a party’s objections

to a magistrate’s decision without allotting the party “the requisite

opportunity to obtain transcripts.” Haverdick v. Haverdick, 11th Dist. No.

2010-T-0040, 2010-Ohio-6256, ¶17; see, also, In re N.L., 11th Dist. No.

2009-T-0019, 2011-Ohio-1010, ¶18; Lincoln v. Rush Expediting, Inc., 2d Dist.

No. 23847, 2010-Ohio-5286, ¶9-10; Black v. Brewer, 178 Ohio App.3d 113,

117, 2008-Ohio-4365, 897 N.E.2d 163, ¶26.         Here, despite the fact that

mother specifically requested the transcript of the hearing and specifically

sought leave to supplement her objections after receiving the transcript, the

trial court nevertheless overruled her objections five days after they were

filed. As recognized above, such action directly contravenes the time allotted

under Civ.R. 53(D)(3)(b)(iii).

      {¶ 11} While we recognize that mother is not automatically entitled to a
copy of the transcript at state’s expense and that the decision to grant

mother’s motion rests within the discretion of the trial court, we note that

mother also separately requested that a transcript be prepared. Thus, even

if the trial court intended to deny mother’s request to have the transcript

prepared at state’s expense, the trial court should have provided mother

notice of its ruling and an opportunity to obtain the transcript at her own

expense. Indeed, because the trial court was alerted that mother intended to

obtain the transcript to support her objections, it should not have ruled on the

objections until the expiration of the thirty days.

      {¶ 12} Further, mother’s objections raise issues with the magistrate’s

factual findings.    Under these circumstances, “a trial court abuses its

discretion when it rules on objections to a magistrate’s report without the

benefit of a transcript.”      In re Wheeler, 5th Dist. No. CT2004-0037,

2005-Ohio-220, citing In re Moorehead (1991), 75 Ohio App.3d 711, 600

N.E.2d 778.    Thus, given that mother specifically challenged some of the

magistrate’s findings and further contested the magistrate’s stated reasons

for granting father’s motion, a review of the transcript was necessary to

dispose of mother’s objections. See Haverdick, supra; In re N.L., supra.

      {¶ 13} The sole assignment of error is sustained.

      Judgment reversed and case remanded for further proceedings
consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court 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.



MARY J. BOYLE, PRESIDING JUDGE

LARRY A. JONES, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
