[Cite as Miller v. Miller, 2011-Ohio-2649.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


BETH MILLER                                    :      JUDGES:
                                               :
                                               :      Hon. Sheila G. Farmer, P.J.
                        Plaintiff-Appellant    :      Hon. Julie A. Edwards, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case No. 10 CAF 09 0074
NORMAN MILLER                                  :
                                               :
                                               :
                       Defendant-Appellee      :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court of
                                                   Common Pleas, Domestic Relations
                                                   Division, Case No. 04DR A 09 434


JUDGMENT:                                          REVERSED AND REMANDED



DATE OF JUDGMENT ENTRY:                            May 26, 2011



APPEARANCES:

For Appellant:                                        For Appellee:

ELIZABETH N. GABA                                     DAVID GORDON
1231 E. Broad St.                                     40 N. Sandusky St.
Columbus, OH 43205                                    Suite 300
                                                      Delaware, OH 43015
[Cite as Miller v. Miller, 2011-Ohio-2649.]


Per Curiam

        {¶1}     Plaintiff-Appellant, Beth Miller (nka Knece), appeals the August 19, 2010

decision of the Delaware County Court of Common Pleas, Domestic Relations Division.

                            STATEMENT OF THE FACTS AND CASE

        {¶2}     Appellant and Defendant-Appellee, Norman Miller, were married on April

28, 1990. One child was born as issue of the marriage on September 9, 1990.

        {¶3}     On September 29, 2004, Appellant filed a complaint for divorce against

Appellee. Appellee filed an answer and counterclaim. The matter proceeded before a

magistrate of the Domestic Relations Division.

        {¶4}     The trial court docket shows the case was set for a settlement conference

on December 21, 2004. On December 27, 2004, a document was filed with the trial

court with the handwritten title, “Memorandum of Agreement.” Underneath the words

“Memorandum of Agreement” is a typewritten title, “AGREED JUDGMENT ENTRY

(DECREE OF DIVORCE).” The body of the document is typed but it also contains

handwritten interlineations initialed by the parties.    The document is signed by the

parties and the counsel for the parties. The document contains a signature line for the

trial court judge assigned to the case. The signature line shows a signature of the “[trial

court judge/initials of magistrate]”. A Shared Parenting Plan and a guidelines worksheet

were also docketed on December 27, 2004. That document also contains the same

signature.

        {¶5}     On October 14, 2005, the trial court issued a sua sponte entry captioned

“Judgment Entry Decree of Divorce.” The judgment entry states:
Delaware County, Case No. 10 CAF 09 0074                                               3


        {¶6}   “The Court, sua sponte hereby adopts and incorporates the document

filed December 27, 2004 titled, ‘Memorandum of Agreement’ as an Agreed Judgment

Entry (Decree of Divorce) as a final Journal Entry, Decree of Divorce.”

        {¶7}   The judgment entry contains the same signature.

        {¶8}   Since the divorce, both parties have remarried.

        {¶9}   In March 2007, Appellee moved to amend the shared parenting plan and

recalculate child support. The parties resolved the issues by agreed entries in July

2007.

        {¶10} On January 21, 2009, Appellant filed a motion for relief from the October

14, 2005 Judgment Entry Decree of Divorce and moved to vacate the December 27,

2004 Memorandum of Agreement, both pursuant to Civ.R. 60(B). Appellant argued in

the motion that the trial court improperly adopted the Memorandum of Agreement

without following the procedures of Civ.R. 53.        Appellant further argued that the

December 27, 2004 Memorandum of Agreement and the October 14, 2005 Judgment

Entry Decree of Divorce should be vacated pursuant to Civ.R. 60(B)(4) and 60(B)(5).

        {¶11} Appellee filed a Motion to Show Cause on April 7, 2009 for Appellant to

show cause as to why she had not complied with a property division found in the

Memorandum of Agreement.

        {¶12} After a further review of the file, Appellant filed a “Motion to Vacate the

‘Judgment Entry Decree of Divorce’ and to Strike the ‘Agreed Judgment Entry (Decree

of Divorce)’ for Cause Shown Herein”, on April 10, 2009. The basis of Appellant’s

motion was that the December 27, 2004 Memorandum of Agreement and October 14,

2005 Judgment Entry Decree of Divorce were signed by the magistrate on behalf of the
Delaware County, Case No. 10 CAF 09 0074                                                  4


trial court judge. Appellant argued in her motion that because the magistrate signed the

October 14, 2005 Judgment Entry Decree of Divorce for the judge, the Decree of

Divorce was a void judgment and was not a final, appealable order.

       {¶13} The matter came on for hearing before a different magistrate on April 14,

2009. The issues before the magistrate were: (1) Appellee’s motion to show cause, (2)

Appellant’s Civ.R. 60(B) motion, and (3) Appellant’s motion to vacate and strike. At the

hearing, Appellant withdrew her Civ.R. 60(B) motion without prejudice to re-filing and

chose to proceed only on her motion to vacate and strike the December 27, 2004 and

October 14, 2005 entries based on the signatures on the entries. The magistrate set

Appellee’s motion to show cause and Appellant’s motion to vacate and strike for an

evidentiary hearing on July 27, 2009. A Magistrate’s Order memorializing these issues

was filed on April 15, 2009.

       {¶14} On July 20, 2009, Appellant served a subpoena upon the trial court judge

to testify at the July 27, 2009 evidentiary hearing. The trial court judge filed a Motion to

Quash the Subpoena. He also submitted an affidavit with the following statements:

       {¶15} “* * *

       {¶16} “[The magistrate] was duly appointed as Magistrate to conduct all

Domestic Relations proceedings;

       {¶17} “As Domestic Relations’ Magistrate, she was given authority only to sign

my name to all judgment entries that were agreed to and approved by the parties;

       {¶18} “* * *”

       {¶19}   An evidentiary hearing was held before the magistrate on July 27, 2009

and a decision was issued on January 26, 2010. At issue before the magistrate was the
Delaware County, Case No. 10 CAF 09 0074                                                5


validity of the December 27, 2004 and October 14, 2005 entries and Appellee’s motion

to show cause.     The magistrate reviewed the procedural history of the case and

determined the Memorandum of Agreement and Judgment Entry Decree of Divorce

were valid entries. He concluded that the contested entries complied with Civ.R. 53 and

it was within the judge’s authority to delegate the duty of signing his name to agreed

judgment entries to the magistrate. Further, because the parties relied on the entries for

their own individual purposes such as remarrying and that the case had been reopened

in 2007 without issue as to the entries, the magistrate found that the parties waived any

objection they may have to the validity of the entries.

       {¶20} In the Magistrate’s Decision, the magistrate went on to complete a Civ.R.

60(B) analysis of Appellant’s original January 21, 2009 motion, although Appellant had

withdrawn that motion.       The magistrate denied Appellant’s 60(B) motion.          The

magistrate also denied Appellee’s motion to show cause.

       {¶21} Appellant filed objections to the Magistrate’s Decision. On August 19,

2010, the trial court approved the Magistrate’s Decision and overruled Appellant’s

objections.

       {¶22} It is from this decision Appellant now appeals.

                              ASSIGNMENTS OF ERROR

       {¶23} Appellant raises four Assignments of Error:

       {¶24} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

IN FINDING THAT THE JUDGMENT ENTRY WAS ENFORCEABLE BECAUSE THE

ENTRY DID NOT ADHERE TO THE MANDATES OF CIV.R. 58.
Delaware County, Case No. 10 CAF 09 0074                                                 6


       {¶25} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

IN FINDING THAT THE JUDGMENT ENTRY WAS ENFORCEABLE AND A FINAL

APPEALABLE ORDER BECAUSE THE JUDGMENT ENTRY DID NOT ADHERE TO

THE MANDATES OF CIV.R. 53.

       {¶26} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY NOT DETERMINING THAT THE ALTERATION OF THE THEN-TITLED

‘MEMORANDUM OF AGREEMENT’ TO SAY ‘AGREED JUDGMENT ENTRY DECREE

OF DIVORCE’ CAUSED THE MEMORANDUM TO NO LONGER EXIST IN THE

COURT FILE, AND FURTHER BY NOT DETERMINING THAT THE NOW ALTERED

DOCUMENT NEWLY CALLED ‘AGREED JUDGMENT ENTRY (DECREE OF

DIVORCE)’ WAS NEVER FILED, AS IT WAS ABSENT FROM THE DOCKET OF THE

COURT.

       {¶27} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BECAUSE [THE JUDGE] SHOULD HAVE RECUSED HIMSELF FROM PRESIDING

OVER THIS MATTER BECAUSE HE WAS CALLED AS A MATERIAL WITNESS TO

TESTIFY ABOUT FACTS IN THE CASE, AND HE TESTIFIED BY AFFIDAVIT. IT WAS

PLAIN ERROR FOR HIM TO RULE ON APPELLANT’S OBJECTIONS.”

                                           I., II.

       {¶28} We consider Appellant’s first and second Assignments of Error

simultaneously because we find them to be dispositive of this appeal. Appellant argues

that the trial court erred in adopting the Magistrate’s Decision that found the October 14,

2005 Judgment Entry Decree of Divorce was a final, appealable order because the

entry fails to comply with Civ.R. 53 and Civ.R. 58. We agree.
Delaware County, Case No. 10 CAF 09 0074                                                 7


       {¶29} At issue in this case is the October 14, 2005 Judgment Entry Decree of

Divorce. The trial court judge attested that the magistrate was given authority to sign

the judge’s name to all judgment entries that were agreed to and approved by the

parties. The underlying December 27, 2004 Memorandum of Agreement giving rise to

the October 14, 2005 Judgment Entry Decree of Divorce was an agreed entry, signed

by the parties and their counsel. On October 14, 2005, the trial court filed a sua sponte

Decree of Divorce. A review of that entry shows that the magistrate signed the judge’s

name to the document and initialed the signature with her initials.

       {¶30} The October 14, 2005 entry, as a Final Decree of Divorce, is a judgment

because it terminates the case or controversy the parties have submitted to the trial

court for resolution. Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211,

736 N.E.2d 101; Aguirre v. Sandoval, Stark App. No. 2010CA00001, 2010-Ohio-6006.

Judgments that determine the merits of the case and make an end to it are generally

final, appealable orders. Harkai, supra. There is no differentiation between an “agreed

judgment” and “judgment” for purposes of finality.       Appellate courts are given the

jurisdiction to review the final orders or judgments of lower courts within their appellate

districts. Section 3(B)(2), Article IV, Ohio Constitution. For a judgment to be final and

appealable, however, it must satisfy not only the requirements of R.C. 2505.02, and if

applicable, Civ. R. 54(B), but also Civ.R. 58. Civ.R. 58(A) states,

       {¶31} “Subject to the provisions of Rule 54(B), upon a general verdict of a jury,

upon a decision announced, * * *, the court shall promptly cause the judgment to be

prepared and, the court having signed it, the clerk shall thereupon enter it upon the
Delaware County, Case No. 10 CAF 09 0074                                                     8


journal.   A judgment is effective only when entered by the clerk upon the journal.”

(Emphasis added.)

       {¶32} At issue in the present case is whether the October 14, 2005 Judgment

Entry Decree of Divorce complies with Civ.R. 58. Upon our review of the relevant case

law and the rules of practice and procedure, we find it does not.

       {¶33} “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.      ‘Magistrates are neither constitutional nor statutory courts.

Magistrates and their powers are wholly creatures of rules of practice and procedure

promulgated by the Supreme Court.’” Yantek v. Coach Builders Limited, Inc., Hamilton

App. No. C-060601, 2007-Ohio-5126, ¶9, citing Quick v. Kwiatkowski, Montgomery App.

No. 18620, 2001-Ohio-1498, citing Sec. 5(B), Art. IV, Ohio Constitution.

       {¶34} Civ.R. 53 does not permit magistrates to enter judgments. This is the

function of the judge, not the magistrate. Brown v. Cummins (1997), 120 Ohio App.3d

554, 555, 698 N.E.2d 501; In re K.K., Summit App. No. 22352, 2005-Ohio-3112, at ¶17;

Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211, 217-218, 736 N.E.2d

101; Kidd v. Higgins (Mar. 29, 1996), Lake App. No. 95-L-112.

       {¶35} The exercise of the magistrate’s powers under Civ.R. 53 is intended only

to “assist courts of record.” Yantek, supra at ¶10. “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.’ ‘[E]ven where a jury is the factfinder [in a proceeding before a

magistrate], the trial court remains as the ultimate determiner’ of the case. It is the
Delaware County, Case No. 10 CAF 09 0074                                                   9


primary duty of the trial court, and not the magistrate, to act as the judicial officer.” Id.

citing Hartt v. Munobe, 67 Ohio St.3d 3, 6, 1993-Ohio-177, 615 N.E.2d 617.

       {¶36} One of the acts of the judicial officer is found in Civ.R. 58 where it states

the court must sign the judgment. This Court examined Civ.R. 58 in an almost similar

situation to the present case where a judgment entry was rubber-stamped with the trial

judge’s signature. In Flores v. Porter, Richland App. No. 2006-CA-42, 2007-Ohio-481,

we found that the judge’s rubber-stamped signature on a judgment entry did not comply

with the requirement in Civ.R. 58 that the court must sign the entry, therefore rendering

the entry not a final, appealable order. We cited to our brethren in the Twelfth District

Court of Appeals in so holding:

       {¶37} “The Mitchell court based its decision in part on the Twelfth District Court

of Appeals case of Brackmann Communications, Inc. v. Ritter (1987), 38 Ohio App.3d

107, 526 N.E .2d 823, in which the court found that a judgment entry that was not

signed by the trial judge was not a final appealable order. The Brackmann court stated:

       {¶38} “’... simply because the amount in controversy is not large does not justify

abandoning basic procedural formalities. Whether it be a county or common pleas

court, a basic tenet of Ohio jurisprudence remains that a court speaks only through its

journal ... Whether it be a county court or a common pleas court, the Ohio Rules of Civil

Procedure, including Civ.R. 58, must be followed and obeyed where they are

applicable.’ Id. at 109. The Brackmann court thus held: ‘In all civil cases appealed to

this court, therefore, a formal final journal entry or order must be prepared which

contains the following: 1. the case caption and number; 2. a designation as a decision

or judgment entry or both; 3. a clear pronouncement of the court's judgment and its
Delaware County, Case No. 10 CAF 09 0074                                                  10

rationale if the entry is combined with a decision or opinion; 4. the judge's signature; 5. a

time stamp indicating the filing of the judgment with the clerk for journalization; and, 6.

where applicable, a Civ.R. 54(B) determination and Civ.R. 54(B) language.’

(Underlining added.) Id. at 109.” Id. at ¶11-12.

        {¶39} In Peters v. Arbaugh, (1976), 50 Ohio App.2d 30, 361 N.E.2d 531, the

Tenth District Court of Appeals examined a judgment entry where the issue was

whether a final, appealable order existed pursuant to Civ.R. 58. Judge Alba Whiteside

wrote in his concurrence:

        {¶40} “* * * Civ.R. 58 provides that ‘* * * the court shall promptly cause the

judgment to be prepared and, the court having signed it, the clerk shall thereupon enter

it.   A judgment is effective only when filed with the clerk for journalization.       * * *’

(Emphasis added.)

        {¶41} “It is my view, as we originally held herein, that there can be no judgment

unless and until it is signed by the court, that is by the judge personally. The affixing of

the judge's name by some unknown person who then initials the ‘signature’ cannot meet

the requirement by Civ.R. 58 that the court sign the judgment. The purpose of this

requirement is obvious. There need be a clear and unequivocal indication in the record

that the action is that of the judge. An initialed ‘signature’ does not furnish that degree

of clarity and certainty that is required. This is especially true where the decision and

judgment are contained in a single writing since there is no prior indication either orally

in open court or by a writing of the court's decision with which the initialed signature

judgment can be compared to ascertain whether or not the judgment truly constitutes

the action of the judge.”
Delaware County, Case No. 10 CAF 09 0074                                             11


       {¶42} The January 26, 2010 Magistrate’s Decision, in denying Appellant’s

Motion to Vacate and Strike, concluded that the trial court is permitted to delegate the

duty of signing a judgment to the magistrate. Pursuant to the dictates of Civ.R. 53 and

Civ.R. 58, we find this conclusion to be in error. A court may not supersede the Rules

of Civil Procedure to give authority to a magistrate to sign the judge’s name to a

judgment. We further find that under the confines of Civ.R. 53 and Civ.R. 58, there is

no differentiation between an “agreed judgment” and a “judgment.” Therefore, in this

case, the October 14, 2005 Judgment Entry Decree of Divorce is not a final, appealable

order because it is not signed by the court pursuant to Civ.R. 58.

       {¶43} We hereby sustain Appellant’s first and second Assignments of Error that

the trial court erred in finding that the October 14, 2005 Judgment Entry Decree of

Divorce is a final, appealable judgment.

       {¶44} We also note that the Magistrate’s Decision also ruled upon the merits of

Appellant’s Civ.R. 60(B) motion to vacate the October 14, 2005 judgment based on

Civ.R. 60(B)(4) and 60(B)(5). We find any conclusions on Appellant’s Civ.R. 60(B)

motion to be premature because (1) Appellant withdrew that motion on April 15, 2009

and it was not before the court and (2) there was no final judgment from which a Civ.R.

60(B) proceeding could rise.

       {¶45} We find it unnecessary to address Appellant’s remaining Assignments of

Error based on our holding above.

       {¶46} The August 19, 2010 decision of the Delaware County Court of Common

Pleas, Domestic Relations Division is reversed and the matter is remanded to the trial
Delaware County, Case No. 10 CAF 09 0074                                           12


court for further proceedings to enter a Final Decree of Divorce so that Appellant can

proceed on her arguments based on the underlying Memorandum of Agreement.

Farmer, P.J.

Edwards, J. and

Delaney, J. concur.



                                       HON. SHEILA G. FARMER



                                       HON. JULIE A. EDWARDS



                                       HON. PATRICIA A. DELANEY
[Cite as Miller v. Miller, 2011-Ohio-2649.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

BETH MILLER                                     :
                                                :
                                                :
                        Plaintiff-Appellant     :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
NORMAN MILLER                                   :
                                                :
                                                :   Case No. 10 CAF 09 0074
                       Defendant-Appellee       :




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

Delaware County Court of Common Pleas, Domestic Relations Division is reversed and

remanded. Costs assessed to be split equally between Appellant and Appellee.




                                              HON. SHEILA G. FARMER



                                              HON. JULIE A. EDWARDS



                                              HON. PATRICIA A. DELANEY
