[Cite as Titus v. Titus, 2018-Ohio-4548.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY



HERBERT TITUS, ET AL.,

        PLAINTIFFS-APPELLEES,

        v.                                                 CASE NO. 8-18-19

DEVYN A. TITUS,

        DEFENDANT-APPELLEE,
        -and-
                                                           OPINION
BRAD WEINER,

        DEFENDANT-APPELLANT.



                  Appeal from Logan County Common Pleas Court
                                  Juvenile Division
                            Trial Court No. 17-CU-0007

                                       Judgment Affirmed

                           Date of Decision: November 13, 2018




APPEARANCES:

        Sheila E. Minnich for Appellees, Herbert & Shannon Titus

        Miranda A. Warren for Appellant
Case No. 8-18-19



ZIMMERMAN, J.

       {¶1} Defendant/Appellant, Brad Weiner (“Appellant”), appeals the

judgment of the Logan County Juvenile Court granting custody of his minor child,

H.I.B.T., to Appellees Herbert and Shannon Titus (maternal grandparents of

H.I.B.T.). On appeal, Appellant argues that the trial court abused its discretion when

it granted custody to H.I.B.T.’s maternal grandparents. For the reasons that follow,

we affirm the ruling of the Logan County Juvenile Court.

                                 Case Background

       {¶2} On June 22, 2017, Appellee’s Herbert and Shannon Titus (hereafter

referred to as “Appellees”) filed a complaint/motion for legal custody of their

grandchild, H.I.B.T.    (Doc. No. 3).     In their motion, Appellees alleged that

H.I.B.T.’s biological mother, Devyn Titus, was not fit to parent H.I.B.T., due to

alleged drug use. (Id.). Appellees also alleged that H.I.B.T was in their care, as

Devyn Titus only recently contacted Appellant to inform him that he was H.I.B.T.’s

biological father. Along with the complaint for legal custody, Appellees also filed

an ex parte motion and affidavit for temporary custody, which the trial court

granted. (Doc. Nos. 5, 12).

       {¶3} Thereafter, Devyn Titus and Appellant were served with a summons on

the complaint for legal custody. (Doc. Nos. 13, 14). Appellant filed his answer on

July 18, 2017. (Doc. No. 23). Appellant indicated to the trial court that he desired

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to have his name added to H.I.B.T.’s birth certificate and further desired to have

custody of H.I.B.T. if Devyn Titus was not awarded custody. (Id.).

       {¶4} After several pretrial motions not pertinent to this appeal, the trial court

scheduled a final hearing on the issue of legal custody and Appellant was served

with the order. (Doc. No. 51).

       {¶5} A final hearing on legal custody was held on January 16, 2018. (Doc.

No. 56). Appellant failed to appear at the hearing and did not have counsel present

to represent him. (Id.). During the hearing, both Devyn Titus and Appellee, Herbert

Titus, testified that they had concerns about Appellant’s behavior.               (Id.).

Specifically, Devyn Titus informed the trial court of a domestic violence incident

involving Appellant wherein law enforcement arrested Appellant. (Id.). Further,

Devyn Titus expressed concerns about Appellant’s drinking habit. (Id.). Lastly,

and concerning Appellant’s employment, Devyn Titus testified that Appellant’s

work as a comedian caused him to travel frequently. (Id.).

       {¶6} The trial court found that an award of custody to Appellant would be

detrimental to the child and found that it would be in the best interest of the child to

be placed into the legal custody of Appellees, Herbert and Shannon Titus. (Id.).

Accordingly, the magistrate recommended that the Appellees be granted legal

custody. (Id.).




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         {¶7} On January 29, 2018, Appellant filed timely objections to the

magistrate’s decision in the trial court. (Doc. No. 57). Specifically, Appellant

objected to: 1) the income reported in the child support worksheet being incorrect;

2) the report of the January 4, 2018 arrest for domestic violence; and 3) Appellee’s

and Devyn Titus’s testimony that Appellant had an “alcohol dependence issue.”

(Id.). Notably, Appellant’s objections did not involve the trial court’s unsuitability

finding’s regarding the criteria set forth in In re Perales.

         {¶8} On February 28, 2018, Appellees filed a motion to dismiss Appellant’s

objections, on the basis that Appellant failed to request and file a transcript with the

trial court as set forth in Civ.R. 53(D)(3)(b)(iii). (Doc. No. 63).

         {¶9} On March 12, 2018, the trial court ruled on the magistrate’s decision.

(Doc. No. 64). The trial court determined that that Appellant, as the objecting party,

had failed to file a transcript with his objections, pursuant to Civ.R. 54(D)(3)(b)(iii),

and therefore the trial court was unable to find that any of the magistrate’s factual

finding were in error. (Id.). Furthermore, the trial court noted that the Appellant’s

attempt to introduce new evidence in his objections was improper.1 (Id.). Finding

that Appellant’s objections were not well taken, the trial court overruled Appellant’s

objections in whole and adopted the magistrate’s findings and recommendations.

(Id.).


1
  While the trial court did address Appellant’s complaints regarding child support, the issue of child support
is not pertinent to this appeal. (See, Doc. No. 64).

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       {¶10} On March 30, 2018, the trial court issued its judgment entry on the

Appellee’s complaint for legal custody, designating the Appellees, Herbert and

Shannon Titus as H.I.B.T.’s legal custodians. (Doc. No. 67). With respect to

Appellant, the trial court granted Appellant residual parental rights, including:

visitation, consent to adoption, religious affiliation, and the responsibility of

support. (Id.). From this judgment Appellant timely appeals, and presents the

following assignment of error for our review:

                        ASSIGNMENT OF ERROR NO. I

       IT WAS AN ABUSE OF DISCRETION AND AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE WHEN THE
       TRIAL COURT FAILED TO APPLY ALL CRITERIA OF IN
       RE PERALES AND FOUND THAT AN AWARD OF CUSTODY
       TO THE APPELLANT WOULD BE DETRIMENTAL TO THE
       MINOR CHILD.

                        Appellant’s First Assignment of Error

       {¶11} Appellant argues that the trial court abused its discretion when it

awarded custody of H.I.B.T. to Appellees. Additionally, Appellant argues that the

decision of the juvenile court was against the manifest weight of the evidence,

because the juvenile court failed to apply all the criteria of In Re Perales when it

granted custody to Appellees. We disagree.

       {¶12} Before reaching the merits of this assignment of error, we find that the

Appellant failed to file a transcript with his objections in the trial court and that his



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assignment of error fails to mirror any of his objections to the magistrate’s decision.

Civ.R. 53(D)(3)(b)(iv) provides:

       (iv) Waiver of right to assign adoption by court as error on appeal.
       Except for a claim of plain error, a party shall not assign as error on
       appeal the court’s adoption of any factual finding or legal conclusion,
       whether or not specifically designated as a finding of fact or
       conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has
       objected to that finding or conclusion as required by Civ.R.
       53(D)(3)(b).

Civ.R. 53(D)(3)(b)(iv). Accordingly, we may only review Appellant’s assignment

of error under a plain error standard. Ordean v. Ordean, 3rd Dist. Shelby No. 17-

06-15, 2007-Ohio-3979, ¶ 13; see also, McBroom v. Loveridge, 6th Dist. Lucas No.

L-05-1391, 2006-Ohio-5908, ¶ 14. In Goldfuss v. Davidson, the Ohio Supreme

Court announced the following standard of review with respect to plain error:

       ‘In appeals of civil cases, the plain error doctrine is not favored and
       may be applied only in the extremely rare case involving exceptional
       circumstances where error, to which no objection was made at the trial
       court, seriously affects the basic fairness, integrity, or public
       reputation of the judicial process, thereby challenging the legitimacy
       of the underlying judicial process itself.’

Id. at ¶ 13-14 quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401,

679 N.E.2d 1099, syllabus.

       {¶13} Appellant argues that the trial court failed to satisfy the criteria of In

re Perales when it found him an unsuitable parent. However, the record reveals

otherwise. Devyn Titus testified that Appellant was arrested on January 4, 2018,



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for a domestic violence incident involving both Devyn Titus and H.I.B.T.2 (Final

Hearing, 01/16/2018 Tr. at 7-8). Furthermore, Devyn Titus introduced the police

report from Appellant’s arrest into the record. (Id.; Ex. B). Because of the domestic

violence incident, Devyn Titus obtained a civil protection order3 (“CPO”) to protect

herself and H.I.B.T. from Appellant. (Id. at 8; Ex. A).

         {¶14} Ohio case law permits a trial court to make a finding a parental

unsuitability where there are incidents of domestic violence. See, In re T.P., 9th

Dist. Summit No. 27483, 2015-Ohio-1628, ¶ 21 (finding that an award of custody

to the father would be detrimental to the child, in part, because of a history of

domestic violence against Mother); see also, In re M.N., 6th Dist. Lucas No. L-15-

1317, 2016-Ohio-7808, ¶¶ 49-51 (finding that the Appellant was an unsuitable

parent, due, in part, to a history of domestic violence).

         {¶15} Moreover, regarding Appellant’s suitability as a parent, Devyn Titus

testified that Appellant drinks alcohol approximately five nights a week and that she

believed Appellant had a problem with alcohol.4 (Final Hearing, 01/16/2018 Tr. at

6; 8).



2
  Appellant asserts in his brief that there was no allegation that he attempted or committed any physical
violence against H.I.B.T. This is contrary to Devyn Titus’s testimony regarding the January 4, 2018 domestic
violence incident, where Appellant “physically” tried to remove H.I.B.T. from her (Devyn Titus) arms. (Final
Hearing, 01/16/2018 Tr. at 7).
3
  Specifically, a Domestic Violence Temporary Protection Order, pursuant to R.C. 2919.26, was granted to
Devyn Titus and H.I.B.T. on January 5, 2018, protecting them from Appellant.
4
  Appellant failed to appear at the hearing and failed to introduce any testimony or evidence to refute Devyn
Titus’s testimony.

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       {¶16} Because the evidence supports that Appellant had an incident of

domestic violence involving H.I.B.T., along with a concerning alcohol problem, we

cannot say that it was plain error for the trial court to find Appellant unsuitable to

parent H.I.B.T. Accordingly, Appellant’s sole assignment of error is overruled.

       {¶17} Having found no error prejudicial to Appellant herein in the particulars

assigned and argued, we overrule Appellant’s assignment of error and affirm the

judgment of the Logan County Juvenile Court.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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