[Cite as Phillips v. Robinson, 2012-Ohio-6108.]


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

KEVIN PHILLIPS                                         C.A. No.      12CA0038-M

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
KRISTIN ROBINSON                                       COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellee                                       CASE No.   03PA0131

                                 DECISION AND JOURNAL ENTRY

Dated: December 26, 2012



        MOORE, Presiding Judge.

        {¶1}     Plaintiff-Appellant, Kevin Phillips, appeals the judgment of the Medina County

Court of Common Pleas, Domestic Relations Division, dismissing his motion for failure to

comply with a court order. This Court reverses.

                                                  I.

        {¶2}     In July 2011, Mr. Phillips filed a motion requesting that the court issue an order

establishing parental rights and responsibilities and a parenting schedule.   On October 6, 2011,

the court filed an order stating that the parties had reached an agreement and that Mr. Phillips’

attorney was to file an agreed judgment entry signed by both parties within 30 days. On

December 2, 2011, Mr. Phillips filed a proposed judgment entry signed by both parties and their

respective attorneys, and requested the court adopt the judgment entry.

        {¶3}     The court did not adopt the judgment entry. Instead, it held a status conference

with the attorneys on January 4, 2012. On January 6, 2012, Mr. Phillips forwarded a revised
                                                  2


judgment entry to Ms. Robinson’s attorney. Mr. Phillips did not receive a response. On

February 22, 2012, Mr. Phillips contacted Ms. Robinson’s attorney again and made a minor

change to the judgment entry as requested. Mr. Phillips then filed the entry with the trial court

and requested the court adopt the proposed entry.

        {¶4}    On April 16, 2012, the court dismissed Mr. Phillips’ case, finding that he had

failed to comply with a court order; specifically, Mr. Phillips had failed to file an agreed

judgment entry signed by both parties and their counsel. Mr. Phillips now appeals and presents

two assignments of error for our review. To facilitate the analysis, we address the assignments

of error together.

                                                 II.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION UNDER
        OHIO LAW IN DISMISSING [PHILLIPS’] PENDING MOTIONS.

                                 ASSIGNMENT OF ERROR II

        THE TRIAL COURT’S DECISION DISMISSING [PHILLIPS’] PENDING
        MOTIONS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶5}    In his two assignments of error, Mr. Phillips argues that the trial court erred in its

decision to dismiss his pending motions because the court erroneously found that he had not

complied with its October 6, 2011, order.

        {¶6}    If an appellee fails to file a brief, the court may, “in determining the appeal, * * *

accept the appellant’s statement of the facts and issues as correct and reverse the judgment if

appellant’s brief reasonably appears to sustain such action.” App.R. 18(C). Appellee, Kristin

Robinson, has not filed a brief, and we, therefore, accept Mr. Phillips’ statements of facts and

issues as correct.
                                                3


       {¶7}    “Generally, absent an error of law, ‘the decision to adopt, reject, or modify a

magistrate’s decision lies within the discretion of the trial court and should not be reversed on

appeal absent an abuse of discretion.’” Cirino v. Cirino, 9th Dist. No. 11CA009959, 2011-Ohio-

6332, ¶ 7, quoting Barlow v. Barlow, 9th Dist. No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse

of discretion indicates that the court’s decision was arbitrary, unconscionable, or unreasonable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶8}    In our review, “we consider the trial court’s action with reference to the nature of

the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, ¶

18. While, Mr. Phillips’ argument on appeal focuses on Civ.R. 41(B), the rule does not apply to

post-judgment motions to modify parental rights and responsibilities or to modify child support.

Hissa v. Hissa, 8th Dist. Nos. 93575 & 93606, 2010-Ohio-3087, ¶ 54-57. Mr. Phillips has also

argued that the court’s decision to dismiss the motion is against the manifest weight of the

evidence. The record, however, does not contain evidence in a technical sense for us to weigh.

“Absent [any] restriction in the civil rules, * * * the trial court * * * [has] broad powers to

control judicial proceedings and enforce sanctions against those who abuse the judicial system.”

Montano v. Montano, 8th Dist. No. 65148, 1993 WL 526940, *4 (Dec. 16, 1993).

       {¶9}    Local Rule 8.01 of the Medina County Domestic Relations Court provides: “Upon

the failure of the opposing party or counsel to approve or reject any submitted judgment entry

[within five days], the preparer of the entry may unilaterally present the entry to the [c]ourt for

journalization * * *.” Mr. Phillips sent the judgment entry to Ms. Robinson’s attorney on

January 6, 2012, subsequently made a requested change, and filed the entry with the court on

February 23, 2012. Ms. Robinson’s attorney did not approve or reject the judgment entry after

receiving it on January 6.
                                                4


       {¶10}    It appears the parties had represented to the court that they had reached an out-

of-court settlement agreement.     However, the record does not contain any details of the

agreement between the parties. The court journalized an order on October 6, 2011, in which it

noted that Mr. Phillips, through his attorney, would file an agreed judgment entry signed by

counsel and the parties. The court ordered the judgment entry be filed within 30 days, or “the

[c]ourt [would] schedule [the] matter for a dismissal hearing.”

       {¶11} On November 7, 2011, Mr. Phillips requested an additional 14 days to file the

entry, and the court granted his request, making the entry due on November 22, 2011. On

December 2, 2011, Mr. Phillips filed a motion requesting the court (1) adopt an agreed judgment

entry filed that same day; and/or (2) grant him an extension of time to file an agreed judgment

entry; and/or (3) conduct an attorney conference.

       {¶12} Mr. Phillips filed two different journal entries attached to his December 2, 2011,

motion. Mr. Phillips explained that he had received both judgment entries by email from Ms.

Robinson’s attorney approximately one hour apart. The first proposed judgment entry was

signed by both parties and their attorneys. According to Mr. Phillips, this entry accurately

reflected the terms agreed to by the parties. The second proposed judgment entry was not signed

by both parties or counsel and had several handwritten modifications each marked with Ms.

Robinson’s initials. According to Mr. Phillips, this second proposed judgment entry did not

reflect the agreement between the parties.

       {¶13} The court held a status conference with the attorneys on January 4, 2012, and the

court made a notation in the docket that Mr. Phillips, through counsel, would file an agreed

judgment entry within seven days. On February 15, 2012, no entry had been filed, and the court

scheduled a dismissal hearing for February 24, 2012.
                                               5


       {¶14} The day before the dismissal hearing, Mr. Phillips filed a new proposed judgment

entry and a motion requesting the court adopt the entry. This proposed judgment entry was

signed by Mr. Phillips and his attorney, but not by Ms. Robinson or her attorney. Further, Mr.

Phillips had attached correspondence his attorney had with Ms. Robinson’s attorney. In these

emails, Mr. Phillips’ attorney explained what changes were made to the judgment entry and that

these changes were made pursuant to the attorneys’ January status conference. Notably, in the

email from Ms. Robinson’s attorney he stated that he had not heard from Ms. Robinson since the

last hearing and that he intended to withdraw from the case because of the lack of

communication.

       {¶15} While it does appear that Ms. Robinson gave consent by phone to the first draft

filed on December 2, 2011, a modified draft was received by Mr. Phillips only an hour later.

There is no indication in the record that Ms. Robinson agreed to the terms of the proposed

settlement agreement submitted by Mr. Phillips on February 23, 2012.

       {¶16} Mr. Phillips complied with Loc.R. 8.01 by providing opposing counsel with the

proposed judgment entry and, having not received an approval or a rejection within five days,

unilaterally presented the entry to the court for journalization. Consequently, the trial court’s

decision to dismiss Mr. Phillips’ pending motions because he failed to comply with the court’s

order to file a judgment entry was unreasonable. See Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983). Accordingly, Mr. Phillips’ assignments of error are sustained.

                                              III.

       {¶17} Mr. Phillips’ assignments of error are sustained. The judgment of the Medina

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

remanded for further proceedings consistent with the foregoing opinion.
                                                 6


                                                                              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 Medina, 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.




                                                     CARLA MOORE
                                                     FOR THE COURT



DICKINSON, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

GREGORY J. MOORE, Attorney at Law, for Appellant.

KRISTIN ROBINSON, pro se, Appellee.
