[Cite as Lang v. Grossman, 2019-Ohio-2019.]


                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT



Melissa R. Lang,                                :

                Plaintiff-Appellee,             :
                                                                No. 18AP-632
v.                                              :         (C.P.C. No. 02JU-08-12885)

Aaron S. Grossman,                              :        (REGULAR CALENDAR)

                Defendant-Appellant.            :



                                       D E C I S I O N

                                     Rendered on May 23, 2019


                On brief: Joseph & Joseph Co., LPA, and S. Kyle Dodderer,
                for appellee. Argued: S. Kyle Dodderer.

                On brief: Gary J. Gottfried, Co., LPA, Gary J. Gottfried, and
                Nick M. Pasquarella, for appellant. Argued: Gary J.
                Gottfried.

                 APPEAL from the Franklin County Court of Common Pleas,
                     Division of Domestic Relations, Juvenile Branch
SADLER, J.
        {¶ 1} Defendant-appellant, Aaron S. Grossman, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
in favor of plaintiff-appellee, Melissa R. Lang. For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On March 4, 2004, the trial court issued an agreed entry establishing the
father-child relationship between appellant and minor child, Logan Lang, born to appellee
on January 11, 2002. Appellant and appellee were never married and reside separately.
No. 18AP-632                                                                               2


The juvenile court ordered appellant to pay child support in the amount of $813.74 per
month.
       {¶ 3} On October 17, 2016, the Franklin County Child Support Enforcement
Agency recommended appellant's child support be modified to $1,171.67 per month. On
October 26, 2016, appellee objected to the modification and filed a request for an
administrative adjustment hearing. On August 2, 2017, a court magistrate held a hearing
on appellee's objection, and on September 20, 2017, the magistrate recommended an
increase in appellant's child support obligation to $4,646.92 per month.
       {¶ 4} On December 11, 2017, appellant timely filed two objections to the
magistrate's decision as follows:

              [1.] The Magistrate failed to conduct a case by case analysis
              as required by Ohio Revised Code 3119.04(B) taking into
              consideration the needs and standard of living of the child
              who is the subject of the child support order.
              [2.] The Magistrate incorrectly calculated child support by
              using a percentage to determine child support in excess of
              $150,000.00 which is not consistent with Ohio Revised Code
              3119.04(B).

       {¶ 5} Appellant's objections to the magistrate's decision resulted in a stay of the
magistrate's order pending the trial court's disposition of the objections. On February 1,
2018, appellee filed a motion to dismiss appellant's objections due to appellant's failure to
timely request a trial transcript, pay the required deposit, and request a hearing on his
objections, in violation of Juv.R. 40(D)(3)(b)(iii) and Loc.R. 8(1) of the Franklin County
Court of Common Pleas, Juvenile Division. On February 5, 2018, appellant filed the trial
transcript 25 days past the date required by Juv.R. 40(D)(3)(b)(iii). On June 14, 2018, the
trial court held an evidentiary hearing on appellant's objections and appellee's motion to
dismiss. The trial court granted appellee's motion to dismiss appellant's objections on
finding appellant "failed to comply with Loc.R. 8 and timely request and submit a deposit
with the supervising stenographer for production of the transcript." (Aug. 8, 2018 Decision
at 5.) Finding no error of law or other defect on the face of the magistrate's decision, the
trial court adopted the magistrate's decision as its own, including the findings of fact and
conclusions of law set forth therein. The trial court also awarded attorney fees of $750 to
appellee pursuant to R.C. 3105.73.
No. 18AP-632                                                                             3


       {¶ 6} Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
       {¶ 7} Appellant assigns the following as trial court error:

              1. The trial court erred and abused its discretion by dismissing
              Appellant's Objection to the Magistrate's Order of December
              4, 2017 because the Appellant did not timely request a
              transcript as provided in Franklin County Local Juvenile Rule
              8.
              2. The trial court erred and abused its discretion by awarding
              to the Appellee $750.00 in attorney's fees when the Appellee
              failed to provide any evidence or submit testimony as to the
              amount of attorney's fees incurred or the reasonableness or
              appropriateness of the fees charged.

III. LEGAL ANALYSIS
       A. Appellant's First Assignment of Error
       {¶ 8} In appellant's first assignment of error, appellant contends the trial court
abused its discretion when it dismissed his objection to the magistrate's decision due to
appellant's failure to comply with Loc.R. 8(1) of the Court of Common Pleas of Franklin
County, Juvenile Division. We agree.
       {¶ 9} In DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189 (1982), the Supreme
Court of Ohio set out the test for determining when a court abuses its discretion in
dismissing a case for violation of a local rule. Although DeHart involved the dismissal of
an appeal, the ruling of the Supreme Court applies with equal weight to the facts in this
case. The court stated in the syllabus:

              A court of appeals abuses its discretion when, after dismissing
              a case, sua sponte, for a minor, technical, correctable,
              inadvertent violation of a local rule, it refuses to reinstate the
              case when: (1) the mistake was made in good faith and not as
              part of a continuing course of conduct for the purpose of
              delay, (2) neither the opposing party nor the court is
              prejudiced by the error, (3) dismissal is a sanction that is
              disproportionate to the nature of the mistake, (4) the client
              will be unfairly punished for the fault of his counsel, and
              (5) dismissal frustrates the prevailing policy of deciding cases
              on the merits.
No. 18AP-632                                                                                                4


        {¶ 10} The Supreme Court acknowledged Ohio courts have the authority to institute
local rules designed to "get right to the focal point of each case and expedite the orderly flow
of its business, thus vindicating the public's interest in the prompt and efficient dispatch of
justice," but the court "hasten[ed] to emphasize * * * a fundamental tenet of judicial review
in Ohio that courts should decide cases on the merits." Id. at 191, 192. The court further
cautioned that "[j]udicial discretion must be carefully -- and cautiously -- exercised before
this court will uphold an outright dismissal of a case on purely procedural grounds." Id. at
192. The DeHart court explained that "[o]nly a flagrant, substantial disregard for the court
rules can justify a dismissal on procedural grounds. Local rules, at any level of our state
court system, should not be used as a judicial mine field, with disaster lurking at every step
along the way." Id. at 193.
        {¶ 11} In Lanning v. Lanning, 10th Dist. No. 94APF12-1710 (May 25, 1995), this
court had an opportunity to employ the DeHart test in reviewing a trial court's dismissal of
objections to a magistrate decision due to appellant's failure to file a transcript. In Lanning,
a referee issued a report that recommended the father be named residential parent and that
the mother be ordered to pay child support. The mother objected, but the trial court
dismissed her objections because she failed to timely request and file the trial transcript.
        {¶ 12} This court in Lanning recognized that Loc.R. 9 of the Court of Common Pleas
Franklin County, Domestic Relations Division, allowed the trial court to dismiss the
objections for failure to file a required transcript, but we found the court abused its
discretion in dismissing because the record showed appellant had actually ordered the
transcript ten days after filing her objections, and the transcript was filed within days of the
hearing on the appellee's motion to dismiss and before the trial court journalized the
dismissal.1
        {¶ 13} This court reached a similar result in O'Brien v. O'Brien, 10th Dist. No. 04AP-
1157, 2005-Ohio-3101. In O'Brien, appellant/father filed a motion to modify custody. A
magistrate recommended the motion be overruled, father's support obligation recalculated,
and father found guilty of contempt. The trial court adopted the magistrate's decision.
Appellant timely filed an objection to the decision but did not timely request a hearing or


1 Loc.R. 9 contains the same operative language as Loc.R.   8(1) of the Franklin County Court of Common Pleas,
Juvenile Division.
No. 18AP-632                                                                                                  5


make arrangements for the preparation of a transcript in compliance with Loc.R. 9. The
mother filed a motion to dismiss the objections. The trial court determined that the father's
failure to comply with Loc.R. 9, requiring a transcript, warranted dismissal of the
objections. The father appealed.
        {¶ 14} In reversing the trial court's judgment and remanding the matter for
consideration of appellant's objections, we noted that "three weeks passed between the time
appellant requested the transcript and the hearing on the motion to dismiss." Id. at ¶ 22.
This court also found the following:

                 [A]ppellee did not base her motion to dismiss on any
                 prejudice, financial or otherwise, resulting from appellant's
                 delay.    Rather, appellee based her motion on purely
                 procedural grounds, that is, appellant's failure to meet the
                 local rule requirements. Given that appellee's motion raised
                 no prejudice from the delay, that it was appellant who was
                 owed "tens of thousands of dollars," and that appellant had
                 already expended $2,000 as down payment for the
                 transcripts, the court's forbearance in continuing the matter
                 until December, thus allowing appellant to be heard on his
                 objections, would have been a reasonable accommodation of
                 both parties' interests.

Id. at ¶ 21.
        {¶ 15} As set out above, the record in this case reveals that appellant filed the
transcript of proceedings on February 5, 2018, 25 days after the transcript was due
pursuant to Loc.R. 8(1) and Juv.R. 40(D)(3)(b)(iii). On February 6, 2018, the trial court
issued a "notice of hearing" to each party scheduling a hearing for March 13, 2018.2 The
case did not go forward on March 13, 2018 for reasons that are not evident in the record.
The trial court subsequently issued an entry continuing the case to May 15, 2018 because
the "court was closed due to power outage on 3/22/18." (Mar. 30, 2018 Entry.) The matter
did not, however, come on for hearing until June 14, 2018, and the record does not disclose
the reason for the additional delay.




2The notice of hearing issued to appellant's trial counsel identified appellant's objections to the magistrate's
decision as the matter to be addressed at the March 13, 2018 hearing, whereas the notice of hearing issued to
appellee's counsel indicates that both appellant's objections and appellee's motion to dismiss the objections
will be heard on March 13, 2018.
No. 18AP-632                                                                            6


       {¶ 16} Loc.R. 8(1) of the Franklin County Court of Common Pleas, Juvenile Division,
provides in relevant part as follows:

              If a finding of fact or weight of the evidence is part or all of the
              basis for the Objection, a transcript of the testimony is
              necessary to support the Objection to the Magistrate's
              decision and must be filed with the Court. Partial transcripts
              may be permitted upon leave of the Court.
              Failure to file a transcript when one is required by this Rule
              is a basis for dismissal of the Objections.
              The request and deposit for said transcript shall be submitted
              to the supervising stenographer within three (3) days after
              the filing of said objections. * * * At the time of ordering of a
              transcript, the ordering counsel or party shall post a deposit
              in an amount equal to the estimated cost of the transcript with
              the supervising stenographer.

(Emphasis added.)
       {¶ 17} Juv.R. 40(D)(3)(b)(iii) provides:

              Objection to magistrate's factual finding, transcript or
              affidavit. An objection to a factual finding, whether or not
              specifically designated as a finding of fact under Juv.R.
              40(D)(3)(a)(ii), shall be supported by a transcript of all the
              evidence submitted to the magistrate relevant to that finding
              or an affidavit of that evidence if a transcript is not available.
              * * * The 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.

(Emphasis added.)
       {¶ 18} In dismissing appellant's objections, the trial court made the following
findings:

              Defendant timely filed his Objections on December 11, 2017.
              Therefore, Defendant was obligated to "request and [submit
              a] deposit" for the transcript by December 14, 2017.
              According to Defendant's counsel, his office requested the
              transcript and there was a delay in the production. * * *
              Indeed, there may have been a delay in the production of the
No. 18AP-632                                                                                   7


              transcript, but that production delay is not at issue.
              [Emphasis sic.] A review of the stenographer's Transcript
              Estimate shows that Defense counsel contacted the
              Stenographer's Office on December 18, 2017 for an estimate.
              The Transcript Estimate shows that on January 2, 2018 (15
              days later), check #2042 arrived in the Stenographer's Office
              for completion of the transcript.        The transcript was
              subsequently filed on February 5, 2018.

              Defendant has not offered any reasons for the delay in
              requesting the transcript. Defendant stipulated that his gross
              income is $612,442, therefore, the $644 (.11% of Defendant's
              gross income) cost to produce the transcript would not have
              been unduly burdensome. Additionally, Defendant did not
              request additional time to request the transcript. The Court
              finds that Defendant failed to comply with Loc.R. 8 and
              timely request and submit a deposit with the supervising
              stenographer for production of the transcript.
(Emphasis added.) (Aug. 8, 2018 Decision at 4-5.)
       {¶ 19} In Lanning, this court held the trial court abused its discretion in dismissing
appellant's objections where the record showed appellant had actually ordered the
transcript 10 days after filing her objections, and the transcript was filed within days of the
hearing on the appellee's motion to dismiss and before the trial court journalized the
dismissal. Here, the record is not clear as to when appellant's trial counsel ordered the
transcript, but the trial court found that 7 days after filing appellant's objections appellant's
trial counsel contacted the stenographer for a cost estimate and that appellant's counsel
made full payment of the cost of the transcript 15 days later.
       {¶ 20} Appellant's delay in requesting the trial transcript and making the deposit
resulted in a corresponding delay in the filing of the transcript, though the exact length of
that delay has not been determined. Nevertheless, even if we attribute the entire 25-day
delay in filing the trial transcript to appellant, the record shows the transcript was available
to the court and the parties more than 4 months prior to the date of the hearing on
appellant's objections and more than 6 months prior to the date the trial court issued its
judgment entry in this case. Applying the logic of the Lanning case to the facts of this case
leads us to the conclusion that the trial court abused its discretion when it dismissed
appellant's objections for the relatively minor violation of the rules. In the absence of any
evidence of bad faith on the part of appellant or his trial counsel, we find dismissal of
No. 18AP-632                                                                                                     8


appellant's objections frustrated the prevailing policy of deciding cases on the merits. As
the Supreme Court noted in DeHart, "[o]nly a flagrant, substantial disregard for the court
rules can justify a dismissal on procedural grounds." Id. at 193. On this record and in
keeping with our prior decision in Lanning, we find dismissal of appellant's objections was
a sanction that was disproportionate to the nature of the mistake.
        {¶ 21} Furthermore, in the O'Brien case, this court relied on appellee's failure to
allege prejudice as a result of the delay in filing the transcript in holding the trial court
abused its discretion in dismissing appellant's objections. In her motion to dismiss
appellant's objections in this case, appellee alleges only that appellant's "undue delay in
failing to request a hearing or a transcript, plus the necessity for Plaintiff to file this Motion
and request a hearing have been detrimental to Plaintiff." (Feb. 1, 2018 Mot. to Dismiss at
4.)3 Though appellee acknowledges that she has continued to receive child support
payments at the original rate of $813.74 per month throughout these proceedings, she
asserts that appellant's delay in requesting a trial transcript and filing the transcript have
prevented appellee from timely receiving the increased award.                           Appellee argues the
disparate economic circumstances of the parties render appellant's rules violation all the
more egregious.
        {¶ 22} Our review of the record reveals that in addition to the 25-day delay in filing
the transcript, a subsequent delay of more than 6 months occurred between the time
appellant filed the transcript and the date the trial court issued its judgment entry in this
case. This delay, which is largely unexplained in the record, cannot be attributed to any act
or omission to act on the part of appellant or appellant's trial counsel. Moreover, the
prejudice alleged by appellee as a result of appellant's failure to comply with Loc.R. 8(1)
and Juv.R. 40(D)(3)(b)(iii) is purely economic in nature and may be completely remedied
when the trial court rules on appellant's objections on remand, as there is no dispute that
the effective starting date for the increase in appellant's child support obligation is
November 1, 2016. Thus, the economic harm to appellee arising directly from appellant's
rules violation is relatively minor and correctible.4


3 There is no support in the record for appellee's contention that appellant's alleged failure to request a hearing

on his objections resulted in any delay in this case as the trial court, on February 6, 2018, set the objections
for a hearing.
4 The trial court judgment was stayed pending appeal on October 3, 2018.
No. 18AP-632                                                                                   9


       {¶ 23} Based on these facts and given the lack of any substantial and lasting
prejudice to appellee as a result of appellant's rules violation in this case, we find the
dismissal of appellant's objections is a sanction which is out of proportion to the violation.
We do recognize that a potential change of child custody is not at issue in this case, as it was
in Lanning and O'Brien and that the impact on appellant of the trial court's decision to
dismiss his objections is purely economic in nature. Nevertheless, we are also aware that
the trial court's judgment entry in this case increases appellant's child support obligation
by more than 570 percent. Thus, the financial implications to appellant of the trial court's
judgment entry are significant and potentially long lasting.
       {¶ 24} Appellant's objections in this case present both legal and factual challenges
to the magistrate's calculation of his child support obligation. Given appellant's relatively
minor rules violation and lack of prejudice to appellee resulting therefrom, we find the trial
court's decision to forgo a ruling on the merits of appellant's objections is unsupportable.
       {¶ 25} For the foregoing reasons, we hold the trial court abused its discretion when
it dismissed appellant's objections. Accordingly, appellant's first assignment of error is
sustained.
       B. Appellant's Second Assignment of Error
       {¶ 26} In appellant's second assignment of error, appellant argues the trial abused
its discretion by awarding appellee $750 in attorney fees due to appellant's rules violation.
We agree.
       {¶ 27} In conjunction with her motion to dismiss appellant's objections, appellee
sought attorney fees and litigation expenses in excess of $2,500 for "the undue delay caused
by [appellant] and for the necessity of filing this Motion." (Feb. 1, 2018 Mot. to Dismiss at
1.) Accordingly, the trial court awarded attorney fees to appellee as a sanction against
appellant for the delays associated with appellant's failure to timely request and file the trial
transcript and to compensate appellee for the legal fees associated with drafting the motion
to dismiss appellant's objections. Having concluded, however, that appellee's motion to
dismiss appellant's objections was without merit and that the trial court erred by dismissing
appellant's objections, we sustain appellant's second assignment of error.
No. 18AP-632                                                                           10


IV. CONCLUSION
      {¶ 28} Having sustained appellant's two assignments of error, we reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, and remand the matter for the court to vacate its August 8, 2018 judgment
entry and to conduct further proceedings in accordance with this decision.
                                                                  Judgment reversed;
                                                      cause remanded with instructions.
                     BROWN and LUPER SCHUSTER, JJ., concur.
                                   _____________
