[Cite as Lingenfelter v. Lingenfelter, 2017-Ohio-235.]


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

JASON LINGENFELTER                                           C.A. No.   15AP0062

        Appellee

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
NICHOLE LINGENFELTER                                         COURT OF COMMON PLEAS
                                                             COUNTY OF WAYNE, OHIO
        Appellant                                            CASE No.   12-DR-0288

                                  DECISION AND JOURNAL ENTRY

Dated: January 23, 2017



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Nichole Lingenfelter (“Wife”), appeals from the judgment

of the Wayne County Court of Common Pleas, Domestic Relations Division.                This Court

reverses.

                                                         I

        {¶2}     Wife and Plaintiff-Appellee, Jason Lingenfelter (“Husband”), married in April

2000 and had two children during their marriage. In June 2012, Husband filed a complaint for

divorce. The parties were able to stipulate to a number of items, but could not agree on others

such as the amount of equity in their home, if any, the allocation of certain debts, and whether

either party should receive spousal and/or child support. A magistrate presided over the parties’

divorce hearing on two separate days: July 30, 2013, and October 10, 2013.

        {¶3}     At the conclusion of the first day’s hearing, the magistrate indicated that he

wished to speak strictly to the attorneys. A discussion then took place, during which the
                                                  2


magistrate asked the attorneys about their settlement negotiations.         Near the end of the

discussion, the magistrate informed the attorneys that he had known Husband’s parents for 35

years and that his former secretary was a member of their family. Shortly thereafter, one of the

attorneys alerted the magistrate that their conversation was still being recorded. The transcribed

conversation then ended.

       {¶4}      Following the second day of the divorce hearing, the magistrate issued his

decision, and the trial court entered judgment upon it. Wife filed objections to the magistrate’s

decision and, after securing a transcript of the proceedings, also filed a motion to disqualify the

magistrate. She argued that the trial court should disqualify the magistrate and set the matter for

a new hearing because the magistrate had failed to make a timely disclosure on the record of his

relationship with Husband’s family. Husband filed a brief in opposition to Wife’s motion to

disqualify as well as her objections. Without holding a hearing, the trial court overruled Wife’s

objections and denied her motion to disqualify.

       {¶5}      Wife appealed from the trial court’s judgment against her and, on appeal,

challenged its ruling on her motion to disqualify. See Lingenfelter v. Lingenfelter, 9th Dist.

Wayne No. 14AP0005, 2015-Ohio-4002, ¶ 8-18. We determined that the trial court abused its

discretion by denying Wife’s motion to disqualify without first holding a hearing. Id. at ¶ 17.

Consequently, we remanded the matter for the court to hold a hearing on Wife’s motion. Id.

       {¶6}      On remand, the court conducted a hearing on Wife’s motion to disqualify. Wife,

Husband, and the magistrate who presided over their divorce hearing all testified before the

court. The court then took the matter under advisement and, subsequently, denied Wife’s motion

to disqualify.
                                                3


       {¶7}    Wife now appeals from the court’s denial of her motion to disqualify as well as its

underlying judgment of divorce. She raises four assignments of error for our review. For ease of

analysis, we consolidate several of her assignments of error.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
       MATTER OF LAW WHEN THE TRIAL COURT OVERRULED THE
       APPELLANT’S MOTION TO DISQUALIFY THE MAGISTRATE.

       {¶8}    In her first assignment of error, Wife argues that the trial court abused its

discretion by denying her motion to disqualify the magistrate who presided over the parties’

divorce hearing. She argues that disqualification was warranted because, under these particular

facts and circumstances, there was an appearance of impropriety on the part of the magistrate.

We agree.

       {¶9}    “Magistrates are judges within the meaning of the Judicial Code of Conduct.”

Lingenfelter, 2015-Ohio-4002, at ¶ 9. Although this Court generally cannot review allegations

of judicial misconduct, we “can review properly raised challenges to a magistrate’s impartiality.”

Id. at ¶ 10. The Civil Rules allow a party to file a motion to disqualify a magistrate “for bias or

other cause.” Civ.R. 53(D)(6). The trial court then may exercise its discretion to determine

whether disqualification is warranted. Id. Accord State ex rel. Williams v. Sieve, 130 Ohio St.3d

207, 2011-Ohio-5258, ¶ 1. This Court reviews a trial court’s disqualification decision for an

abuse of discretion. See Lingenfelter at ¶ 10. An abuse of discretion implies that the trial court

was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

       {¶10} As we outlined in the prior appeal in this matter,
                                                 4


       “[a]n independent, fair, and impartial judiciary is indispensable to our system of
       justice. The United States legal system is based upon the principle that an
       independent, impartial, and competent judiciary, composed of men and women of
       integrity, will interpret and apply the law that governs our society. Thus, the
       judiciary plays a central role in preserving the principles of justice and the rule of
       law.” Preamble of the Code of Judicial Conduct. With respect to judicial
       disqualification, the Supreme Court of Ohio has stated that “‘[p]reservation of
       public confidence in the integrity of the judicial system is vitally important,’ and
       ‘[a]n appearance of bias can be just as damaging to public confidence as actual
       bias.’” In re Disqualification of Burge, 138 Ohio St.3d 1271, 2014-Ohio-1458, ¶
       9, quoting In re Disqualification of Murphy, 110 Ohio St.3d 1206, 2005-Ohio-
       7148, ¶ 6. Thus, the Code of Judicial Conduct provides that “[a] judge shall
       disqualify himself or herself in any proceeding in which the judge’s impartiality
       might reasonably be questioned[.]” Jud.Cond.R. 2.11(A). Magistrates are judges
       within the meaning of the Judicial Code of Conduct. See Application of the Code
       of Judicial Conduct. The comments to the rule advise that, “[a] judge should
       disclose on the record information that the judge believes the parties or their
       lawyers might reasonably consider relevant to a possible motion for
       disqualification, even if the judge believes there is no basis for disqualification.”
       See Jud.Cond.R. 2.11, Comment 5.

Lingenfelter at ¶ 9. “‘The proper test for determining whether a judge’s participation in a case

presents an appearance of impropriety is * * * an objective one. A judge should step aside or be

removed if a reasonable and objective observer would harbor serious doubts about the judge’s

impartiality.’” In re Disqualification of Farmer, 139 Ohio St.3d 1202, 2014-Ohio-2046, ¶ 7,

quoting In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, ¶ 8.

       {¶11} On the first day of the parties’ divorce hearing, Wife testified on cross-

examination, and Husband testified on direct examination. The magistrate then called a recess

for the day and asked to speak strictly with the attorneys. The transcript reflects that the

magistrate asked both attorneys about the status of their negotiations. As the magistrate and the

attorneys discussed various aspects of the case, a question arose as to whether Husband would be

able to secure a refinancing for the marital residence.       Husband’s attorney suggested that

Husband’s parents might help him with the refinancing and, shortly thereafter, the following

exchange took place:
                                                5


       THE MAGISTRATE: I mean, I know his mom and dad by the way just so you
       know that. I know Dave and Alice Lingenfelter. I’ve known them for 35 years.
       In fact I know his -- my secretary is the niece of Alice.

       [WIFE’S COUNSEL]: [Your current secretary?] Or your former secretary?

       THE MAGISTRATE: No. Former secretary.

       [WIFE’S COUNSEL]: Okay.

       THE MAGISTRATE: My former secretary * * *. [Her] mom is the sister of
       Alice Lingenfelter. You know, it’s Holmes County.

The magistrate and the attorneys then briefly continued to discuss other aspects of the case until

the following exchange occurred:

       THE MAGISTRATE: * * * Spousal support, I am not impressed with [Wife]. I
       really am not. I mean, she should have been out beating the bricks getting a job
       for the last year or so. I think you know that.

       [HUSBAND’S COUNSEL]: You’re still on the record.

       THE MAGISTRATE: I think you know how I feel about that.

       [WIFE’S COUNSEL]: Yeah.

       [HUSBAND’S COUNSEL]: Do you know you’re still on the record?

       THE MAGISTRATE: Oh.

       [WIFE’S COUNSEL]: Scratch all that. Yeah.

       [HUSBAND’S COUNSEL]: I just noticed this was running.

The last statement made by Husband’s attorney is the last one in the transcript for the first day’s

hearing. The transcript then resumes on the second day of the hearing, 72 days later. On the

second day of the hearing, there was no discussion regarding the magistrate’s familiarity with

Husband’s family.

       {¶12} At the hearing on her motion to disqualify, Wife testified that she left the

courtroom on the first day of the divorce hearing after the magistrate asked to speak strictly to

the attorneys. She testified that she waited outside for her attorney and that, when her attorney
                                                 6


came out of the courtroom, she told Wife that the magistrate knew Husband’s parents.

According to Wife, her attorney did not tell her how long the magistrate had known Husband’s

parents and did not disclose that another member of Husband’s family had been the magistrate’s

secretary. Wife testified that she only learned about those facts when her new counsel secured a

transcript of the proceedings for purposes of filing her objections to the magistrate’s decision.

She testified that, had she known those additional facts earlier in the proceedings, she would

have requested a new magistrate. She further testified that she felt the magistrate had demeaned

her and made statements that made it appear that he “was more on the other person’s side.”

According to Wife, when she learned more about the nature of the magistrate’s relationship with

Husband’s family, she then felt that it “[made] sense * * * why [the magistrate] would make

those comments [towards her].”

       {¶13} Husband also testified at the hearing on Wife’s motion to disqualify. He verified

that he left the courtroom when the magistrate asked to speak strictly to the attorneys at the end

of the first day’s hearing. Additionally, he testified that, before trial, he was not aware that the

magistrate knew his parents. He stated that, had the magistrate and his parents been close with

one another, he believed he would have had knowledge of their affiliation.

       {¶14} Finally, the magistrate who presided over the parties’ divorce hearing testified at

the hearing on Wife’s motion. The magistrate testified that he did not have an ongoing or close

relationship with Husband’s parents; he was simply acquainted with them. He also testified that

his former secretary, Husband’s cousin, had not worked for him in over 17 years. The magistrate

denied that his familiarity with Husband’s parents had affected his ability to reach a fair decision

in the divorce proceedings. He stated that he disclosed the relationship because, at some point,
                                                  7


someone brought up Husband’s parents and it occurred to him that “those [were] the folks that

[he] met way back when.”

       {¶15} The magistrate testified that he did not “have any knowledge or memory of the

tape recorder [in the courtroom] being on or off or [him] turning it off or anything like that”

when he was speaking to the parties’ attorneys. In any event, the magistrate testified that he felt

it was “[n]ot necessarily” the best practice or even his normal practice to make disclosures of the

kind he made here in a setting where both the parties and their attorneys are present. He testified

that he assumes attorneys will accurately relay information of that kind to their clients and that,

in this case, there was “a really strong inference” that he intended for the attorneys to tell their

clients about his acquaintance with Husband’s family. He further testified that, in this case, he

“assumed that [he had] assured counsel that * * * [his acquaintance with Husband’s family]

would not affect [his] decision whatsoever.” He admitted, however, that the transcript did not

show that he ever asked the attorneys whether they believed that his relationship with Husband’s

family posed a problem to his continuing to hear the case. The magistrate stated that it was

“implied” that he made his disclosure for the purpose of giving the attorneys that opportunity.

       {¶16} The trial court denied Wife’s motion to disqualify because there was no evidence

that the magistrate had a close relationship with Husband’s family. The court noted that the

magistrate had described simply meeting Husband’s parents some 35 years’ earlier and not

having any type of relationship with them. The court found that the magistrate had testified that

he only realized he knew Husband’s parents when they were mentioned during the trial.

Moreover, the court noted that the magistrate only saw his former secretary, Husband’s cousin,

occasionally at social events. According to the trial court, the magistrate testified that he had: (1)

informed counsel of his acquaintance so that they could tell their clients about it, and (2)
                                                 8


“assured counsel (on July 30, 2013) that knowing these individuals would not affect his decision

on the case.” The court concluded that disqualification was unnecessary because no objective

observer “would harbor serious doubts about the magistrate’s impartiality.”

        {¶17} Contrary to the trial court’s opinion, the magistrate did not testify that he “assured

counsel (on July 30, 2013) that knowing these individuals would not affect his decision on the

case.” The magistrate testified that he assumed he had made that assurance, and the record

reflects that, in fact, he did not. Moreover, the magistrate never instructed the attorneys to

inform their clients about his relationship with Husband’s family. The magistrate testified that

he believed the record contained “a really strong inference” that he intended for the attorneys to

tell their clients about his acquaintance with Husband’s family. Nevertheless, Wife testified that

her attorney only gave her limited information about the magistrate’s relationship with

Husband’s family. She stated that her attorney failed to describe the length of that relationship

or mention that Husband’s cousin had been employed as the magistrate’s secretary. Wife

testified that she only learned about those additional details after her new attorney secured a copy

of the transcript.

        {¶18} As previously set forth, “[a] judge should disclose on the record information that

the judge believes the parties or their lawyers might reasonably consider relevant to a possible

motion for disqualification, even if the judge believes there is no basis for disqualification.”

(Emphasis added.)      Jud.Cond.R. 2.11, Comment 5.        Here, it is questionable whether the

magistrate’s disclosure occurred “on the record.” Compare State v. Lomax, 166 Ohio App.3d 55,

2006-Ohio-1373, ¶ 13 (1st Dist.) (describing “on the record” as “made in court and taken down

in the transcript”) with State v. Gaddis, 8th Dist. Cuyahoga No. 77835, 2002-Ohio-1830, ¶ 8 (“In

its ordinary and historical usage, the term ‘on the record’ means recorded proceedings occurring
                                                9


in open court in the presence of the judge and the parties.”). The transcript of the divorce

hearing reflects that both the magistrate and the attorneys were unaware that their post-hearing

conversation was being recorded. Moreover, at that point, the matter was in recess, and the

magistrate had specifically asked to speak privately with the attorneys. At no point, on the

record, were the parties informed of the magistrate’s relationship with Husband’s family.

Moreover, there was no conversation on the record regarding the parties’ willingness to waive

any potential issues with regard to that relationship. Indeed, no one explored the magistrate’s

relationship with Husband’s family. Although the magistrate later testified that he only met

Husband’s parents and did not have any relationship with them, we would note that he was able

to recall both of their first names without difficulty. At no point in the divorce proceedings did

anyone mention Husband’s parents by name.

       {¶19} As we discussed in the previous appeal in this matter,

       it is apparent from even a cursory review of the magistrate’s decision that
       credibility played an important role in the magistrate’s factual findings. The
       decision is notable for the number of negative references to Wife’s attempts at
       securing employment and for the magistrate’s propensity for siding with Husband
       on issues of credibility. While this could point to a reality that Husband’s
       testimony was in fact more credible than Wife’s, there was very little in the way
       of concrete documentary or physical evidence to support one party’s testimony
       over the other. So, the crediting of Husband’s testimony could also evidence bias
       on the part of the magistrate based upon a lengthy and close relationship with
       Husband’s family.

Lingenfelter, 2015-Ohio-4002, at ¶ 14. We note that, at the time the magistrate made a number

of negative references towards Wife, he had yet to hear Wife’s evidence. At that point, only

Husband had presented his evidence.

       {¶20} Having reviewed the record, we must conclude that the trial court abused its

discretion when it denied Wife’s motion to disqualify. Importantly, “‘[a]n appearance of bias

can be just as damaging to public confidence as actual bias.’” In re Disqualification of Burge,
                                                10


138 Ohio St.3d 1271, 2014-Ohio-1458, ¶ 9, quoting In re Disqualification of Murphy, 110 Ohio

St.3d 1206, 2005-Ohio-7148, ¶ 6. Disqualification is warranted if a reasonable person would

conclude that the appearance of impropriety exists. See In re Disqualification of Farmer, 139

Ohio St.3d 1202, 2014-Ohio-2046, at ¶ 7, quoting In re Disqualification of Lewis, 117 Ohio

St.3d 1227, 2004-Ohio-7359, at ¶ 8. Accordingly, whether the magistrate here possessed any

actual bias in favor of Husband or against Wife is not at issue. The record reflects that the

magistrate had a private conversation with the attorneys, only disclosed his relationship with

Husband’s family at that time, never inquired of the attorneys or the parties whether that

relationship raised any concern for them, never assured the attorneys that the relationship would

not affect his decision-making, and, before hearing all the evidence, made a number of negative

references toward Wife. It further reflects that the conversation between the magistrate and the

attorneys ended abruptly when one of the attorneys pointed out that the conversation was being

recorded. The magistrate never took the opportunity to address his disclosure with both the

parties and their attorneys on the record. He never ensured that, given his disclosure, both

parties were comfortable going forward with the proceeding.

       {¶21} Based on all of the foregoing, a reasonable person could conclude that there was

at least an appearance of impropriety on the part of the magistrate. See In re Disqualification of

Farmer at ¶ 7, quoting In re Disqualification of Lewis at ¶ 8. See also James v. James, 101 Ohio

App.3d 668, 677 (2d Dist.1995) (appearance of partiality warranted disqualification of the

referee who presided over the parties’ divorce hearing). While we are mindful of the deferential

standard of review that applies in this matter, we are likewise mindful that the “‘[p]reservation of

public confidence in the integrity of the judicial system is vitally important[.]’”           In re

Disqualification of Burge, 138 Ohio St.3d 1271, 2014-Ohio-1458, at ¶ 9, quoting In re
                                                11


Disqualification of Murphy, 110 Ohio St.3d 1206, 2005-Ohio-7148, at ¶ 6. Consequently, we

must conclude that the trial court abused its discretion when it denied Wife’s motion to

disqualify. Wife’s first assignment of error is sustained.

                                Assignment of Error Number Two

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
       MATTER OF LAW WHEN THE TRIAL COURT USED THE DATE OF
       SEPARATION AS OPPOSED TO THE STIPULATED TERMINATION DATE
       OF THE MARRIAGE WHEN CALCULATING THE EQUITY IN THE
       MARITAL HOME.

                               Assignment of Error Number Three

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
       MATTER OF LAW WHEN IT DETERMINED LENGTH AND AMOUNT OF
       SPOUSAL SUPPORT AWARDED TO THE APPELLANT.

                                Assignment of Error Number Four

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CALCULATED
       CHILD SUPPORT, FAILED TO MAKE A CHILD SUPPORT AWARD TO
       THE APPELLANT AND NAMING THE APPELLANT THE CHILD SUPPORT
       OBLIGOR.

       {¶22} In her remaining assignments of error, Wife challenges various aspects of the trial

court’s judgment decree of divorce. Based on our resolution of Wife’s first assignment of error,

her remaining assignments of error are moot, and we decline to address them. See App.R.

12(A)(1)(c).

                                                III

       {¶23} Wife’s first assignment of error is sustained. Her remaining assignments of error

are moot. The judgment of the Wayne County Court of Common Pleas, Domestic Relations

Division, is reversed, and the cause is remanded for further proceedings consistent with the

foregoing opinion.

                                                                            Judgment reversed,
                                                                           and cause remanded.
                                                12




       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 Wayne, 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.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NORMAN R. “BING” MILLER, JR., Attorney at Law, for Appellant.

ROSANNE K. SHRINER, Attorney at Law, for Appellee.
