[Cite as Kuntz v. Ferrato, 2012-Ohio-4873.]


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

BRAD J. KUNTZ                                         C.A. No.       11CA0102-M

          Appellant

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JESSICA FERRATO                                       COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
          Appellee                                    CASE No.   08 PA 0213

                                 DECISION AND JOURNAL ENTRY

Dated: October 22, 2012



          BELFANCE, Judge.

          {¶1}   Plaintiff-Appellant Brad Kuntz appeals from the decision of the Medina County

Court of Common Pleas, Domestic Relations Division. For the reasons set forth below, we

affirm.

                                                 I.

          {¶2}   Mr. Kuntz is the father and Defendant-Appellee Jessica Ferrato is the mother of

I.F., born January 3, 2002. Mr. Kuntz and Ms. Ferrato have never been married. It is undisputed

that both parents abused drugs, including methamphetamines, in the past.

          {¶3}   In 2008, Mr. Kuntz filed a complaint seeking the allocation of parental rights and

responsibilities and the establishment of paternity for I.F. At the time, Ms. Ferrato was working

on a fishing boat in Alaska and I.F. was in Mr. Kuntz’ care. After Ms. Ferrato returned to Ohio,

the matter proceeded to a hearing in July 2009, after which the magistrate issued a decision

finding it in the best interest of I.F. that Mr. Kuntz be named the temporary residential parent and
                                                2


legal custodian. Ms. Ferrato objected to the decision. In August 2009, the magistrate issued an

order appointing a guardian ad litem and requiring both parties to undergo a “full panel hair

analysis[.]”   Following receipt of the test results, the guardian ad litem filed an ex-parte

emergency motion requesting that Ms. Ferrato receive temporary custody of I.F. because Mr.

Kuntz tested positive for both amphetamines and methamphetamines and the “results were

exceptionally high.” Ms. Ferrato’s test results were negative. The motion was granted. A

hearing was held on the motion on September 24, 2009, after which the magistrate issued an

order recounting the testimony and awarding temporary custody to Ms. Ferrato. Specifically, the

magistrate noted that Mr. Kuntz “believe[d] the excessively high results [we]re a result of the use

of medications he was prescribed in the last ninety days [for ADHD], including Ritalin, Adderall

and Straterra.” The magistrate found that Mr. Kuntz’ explanation was not credible.

       {¶4}    In December 2009, Ms. Ferrato filed a motion seeking to be declared I.F.’s sole

residential parent and legal custodian. In February 2010, following a hearing, the magistrate

ordered that Mr. Kuntz “immediately take a urine test * * * and fully disclose all prescribed

medications. * * * [He] shall continue to take monthly urines tests * * * and have the results

forwarded to the Guardian ad Litem and the Court’s Confidential File.” A final hearing was held

on dates in April and May 2010.        The magistrate issued a decision on August 12, 2010,

concluding that it was in I.F.’s best interest that Mr. Kuntz be named the sole residential parent.

The trial court adopted the magistrate’s decision that same day. The magistrate noted that Ms.

Ferrato and her mother talked negatively about Mr. Kuntz in front of I.F., that Mr. Kuntz had no

plans to establish a residence outside of Ohio, whereas because of Ms. Ferrato’s chosen

profession, she might be required to move out of state, and that Mr. Kuntz and the guardian ad

litem expressed concerns about I.F.’s hygiene and appearance while in Ms. Ferrato’s care. While
                                                 3


the magistrate expressed concern over Mr. Kuntz’ positive drug screen, the magistrate believed

that Mr. Kuntz had “taken all necessary steps to rectify the situation and has tested clean in

multiple subsequent tests.” Thus, despite that fact that there was evidence that both parties loved

I.F. and have positive attributes to offer him, the magistrate concluded that Mr. Kuntz should be

designated the sole residential parent.

         {¶5}   Ms. Ferrato filed objections and a hearing was held on the objections. After

which, the trial court vacated the magistrate’s decision and concluded that it was in the best

interest of I.F. that Ms. Ferrato be named the sole residential parent. The trial court expressed

concern over Mr. Kuntz’ positive drug screen, his use of prescription drugs without a

prescription, his failure to disclose his prior substance abuse to his prescribing physician, and his

failure to comply with court orders. The court acknowledged that there were concerns regarding

some of Ms. Ferrato’s parenting choices but concluded those concerns did not outweigh the

court’s concerns over Mr. Kuntz’ substance abuse issues. Mr. Kuntz has appealed, raising three

assignments of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

         THE TRIAL COURT ABUSED ITS DISCRETION WHEN IN MAKING ITS
         FINAL DECISION, IT CONSIDERED AND UTILIZED SEVERAL FACTS
         THAT HAD NOT BEEN INTRODUCED AS EVIDENCE AT TRIAL AND
         HAD NOT BEEN MADE A PART OF THE RECORD[.]

         {¶6}   Mr. Kuntz asserts in his first assignment of error that the trial court abused its

discretion in considering facts not within the trial transcript in reaching its decision. We do not

agree.

         {¶7}   As we have found evidence in the record to support the statements made by the

trial court and challenged by Mr. Kuntz, we are not persuaded by his argument. First, Mr. Kuntz
                                                4


asserts that the following paragraph from the trial court’s entry contains facts which were not

properly before the trial court:

       Initially, the Father maintained that his prescription medications for ADHD
       caused the false positive result in September of 2009. This allegation was
       disputed by the Medical Review Officer from the testing facility, who indicated to
       the Court that none of the prescriptions disclosed by the Father were responsible
       for the positive result. Nevertheless, at a hearing on September 24, 2009, Father
       continued to blame the positive test on his prescription medications.

       {¶8}    There are other documents in the record, including magistrate’s orders, which

support the statements made by the trial court. Mr. Kuntz has not explained why the trial court

should not be able to rely on this information when reciting the history of the case, when

determining whether prior orders have been complied with, or when determining whether a

party’s story has changed. See In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, ¶ 14 (9th

Dist.), quoting In re LoDico, 5th Dist. No. 2003–CA–00446, 2005-Ohio-172, ¶ 94 (“A trial court

‘may only take judicial notice of prior proceedings in the immediate case.’”). We note that Mr.

Kuntz has not asserted that the trial court’s statements are inaccurate. Further, Mr. Kuntz has not

asserted on appeal that he should have been given the opportunity to be heard on this issue, see

Evid.R. 201(E), nor did he attempt to raise the issue below.

       {¶9}    Specifically, the magistrate’s October 2, 2009 order, which summarizes testimony

from the September 2009 hearing, states that “Father believes the excessively high results are a

result of the use of medications he was prescribed in the last ninety days, including Ritalin,

Adderall, and Straterra.” Further, the fax accompanying Mr. Kuntz’ September 2009 drug

results, which was read at trial, stated that “this result is not due to [Mr. Kuntz’] current

medications.” Thus, the trial court’s statements are supported by evidence in the record.

       {¶10} Mr. Kuntz also asserts that the trial court could not examine its confidential file in

weighing the evidence. Specifically, Mr. Kuntz finds it problematic that the trial court noted in
                                                 5


its entry that drug assessments and drug testing results were not in the confidential file when

there was no testimony on this precise issue. Notably, prior magistrate’s orders required that

such results be forwarded not only to the guardian ad litem but also to the court’s confidential

file. Accordingly, we understand why the trial court would find it important to examine the

confidential file to determine whether the parties had complied with the court’s prior orders. Mr.

Kuntz’ only argument on this point appears to be the trial court’s confidential file is not part of

the trial court’s record; however, Mr. Kuntz has pointed to no law that supports that conclusion

nor has he alleged that he would be unable to make the confidential file part of the record on

appeal if he so desired. See App.R. 16(A)(7).1 Accordingly, we overrule Mr. Kuntz’ first

assignment of error.

                                  ASSIGNMENT OF ERROR II

       THE [TRIAL COURT] ABUSED ITS DISCRETION WHEN IT CONCLUDED
       THAT FATHER’S SOBRIETY HAD NOT BEEN ESTABLISHED[.]

       {¶11} Mr. Kuntz argues in his second assignment of error that the trial court erred in

failing to conclude that Mr. Kuntz’ sobriety had been established. Essentially, Mr. Kuntz asserts

that the trial court’s finding is against the manifest weight of the evidence because it discounted

the guardian ad litem’s testimony concerning Mr. Kuntz’ drug screen and assessments.

       {¶12} Recently, the Supreme Court of Ohio clarified that the criminal manifest weight

standard applies in reviewing civil cases as well. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, ¶ 17. Thus,

       [t]he [reviewing] court * * * weighs the evidence and all reasonable inferences,
       considers the credibility of witnesses and determines whether in resolving
       conflicts in the evidence, the [finder of fact] clearly lost its way and created such a


       1
         We note that, given the confidential information at issue, such a file or set of documents
could be filed under seal on appeal.
                                                 6


       manifest miscarriage of justice that the [judgment] must be reversed and a new
       trial ordered.

(Internal quotations and citations omitted.) Id. at ¶ 20. “In weighing the evidence, the court of

appeals must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

“[I]n determining whether the judgment below is manifestly against the weight of the evidence,

every reasonable intendment and every reasonable presumption must be made in favor of the

judgment and the finding of facts.” (Internal quotations and citation omitted.) Id. Thus, “[i]f the

evidence is susceptible of more than one construction, the reviewing court is bound to give it that

interpretation which is consistent with the verdict and judgment, most favorable to sustaining the

verdict and judgment.” (Internal quotations and citation omitted.) Id.

       {¶13} As noted above, prior magistrate’s orders required that Mr. Kuntz’ drug test

results and assessments be forwarded to the court’s confidential file. Further, the magistrate’s

February 12, 2010 order required that Mr. Kuntz undergo an immediate drug test and one every

30 days afterwards. The trial court noted that the only subsequent drug test in the record was

dated March 16, 2010.      Thus, the trial court was left to consider the guardian ad litem’s

testimony and report with respect to the issue of Mr. Kuntz’ sobriety. The trial court noted that

certain statements in the guardian ad litem’s report2 concerning Mr. Kuntz’ substance abuse were

contrary to testimony presented at trial. This fact alone could have caused the trial court to

hesitate in solely relying on the guardian ad litem’s conclusions with respect to Mr. Kuntz’

sobriety. The trial court also noted that, while the guardian ad litem indicated that she reviewed




       2
           The guardian ad litem’s report is not part of the record on appeal, and, thus, to the
extent it is necessary to our review, we presume regularity in the trial court’s findings. No-Burn,
Inc. v. Murati, 9th Dist. No. 25495, 2011-Ohio-5635, ¶ 22.
                                                 7


Mr. Kuntz’ assessment, the findings and conclusions from that assessment are not in the record.

Thus, in light of the limited evidence in the record on the topic, the trial court found that the

guardian ad litem’s finding that it was unlikely that Mr. Kuntz would abuse drugs to be

conclusory. In sum, it does not appear that the trial court had confidence in the guardian ad

litem’s assessment given contradictions apparent at trial and that it did not believe it had

sufficient evidence from which it could be confident that Mr. Kuntz was sober. In light of the

evidence in the record, we cannot say that the trial court’s finding concerning the conclusory

nature of the guardian ad litem’s report is against the weight of the evidence. Accordingly, we

overrule Mr. Kuntz’ second assignment of error.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING THE
       MAGISTRATE’S DECISION AND NAMING MOTHER AS SOLE LEGAL
       CUSTODIAN OF THE MINOR [] CHILD[.]

       {¶14} Mr. Kuntz asserts in his third assignment of error that the trial court abused its

discretion in naming Ms. Ferrato the sole residential parent.3

       {¶15} “This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion.” (Internal citation omitted.) Oberlin v. Oberlin, 9th Dist.

No. 25864, 2011-Ohio-6245, ¶ 7.        “In so doing, 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. “When making the allocation of the parental rights and

responsibilities for the care of the children under this section in an original proceeding * * * the

court shall take into account that which would be in the best interest of the children.” R.C.


       3
          While the court also considered whether shared parenting was appropriate and
determined it was not, that conclusion has not been challenged on appeal, and, therefore, we do
not address the shared parenting provisions in R.C. 3109.04.
                                                8


3109.04(B)(1). “‘[F]or a reviewing court to overturn a trial court’s determination of custody, the

appellate court must find that the trial court abused its discretion.’” Taylor v. Taylor, 9th Dist.

No. 11CA010071, 2012-Ohio-4097, ¶ 9, quoting Masters v. Masters, 69 Ohio St.3d 83, 85

(1994). An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” (Internal quotations and citation omitted.) Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

       In determining the best interest of a child pursuant to this section, whether on an
       original decree allocating parental rights and responsibilities for the care of
       children or a modification of a decree allocating those rights and responsibilities,
       the court shall consider all relevant factors, including, but not limited to:

       (a) The wishes of the child’s parents regarding the child’s care;

       (b) If the court has interviewed the child in chambers pursuant to division (B) of
       this section regarding the child’s wishes and concerns as to the allocation of
       parental rights and responsibilities concerning the child, the wishes and concerns
       of the child, as expressed to the court;

       (c) The child’s interaction and interrelationship with the child’s parents, siblings,
       and any other person who may significantly affect the child’s best interest;

       (d) The child’s adjustment to the child’s home, school, and community;

       (e) The mental and physical health of all persons involved in the situation;

       (f) The parent more likely to honor and facilitate court-approved parenting time
       rights or visitation and companionship rights;

       (g) Whether either parent has failed to make all child support payments, including
       all arrearages, that are required of that parent pursuant to a child support order
       under which that parent is an obligor;

       (h) Whether either parent or any member of the household of either parent
       previously has been convicted of or pleaded guilty to any criminal offense
       involving any act that resulted in a child being an abused child or a neglected
       child; whether either parent, in a case in which a child has been adjudicated an
       abused child or a neglected child, previously has been determined to be the
       perpetrator of the abusive or neglectful act that is the basis of an adjudication;
       whether either parent or any member of the household of either parent previously
       has been convicted of or pleaded guilty to a violation of section 2919.25 of the
       Revised Code or a sexually oriented offense involving a victim who at the time of
                                                 9


       the commission of the offense was a member of the family or household that is
       the subject of the current proceeding; whether either parent or any member of the
       household of either parent previously has been convicted of or pleaded guilty to
       any offense involving a victim who at the time of the commission of the offense
       was a member of the family or household that is the subject of the current
       proceeding and caused physical harm to the victim in the commission of the
       offense; and whether there is reason to believe that either parent has acted in a
       manner resulting in a child being an abused child or a neglected child;

       (i) Whether the residential parent or one of the parents subject to a shared
       parenting decree has continuously and willfully denied the other parent’s right to
       parenting time in accordance with an order of the court;

       (j) Whether either parent has established a residence, or is planning to establish a
       residence, outside this state.

R.C. 3109.04(F)(1).

       {¶16} Mr. Kuntz argues that the trial court’s conclusion that it was in I.F.’s best interest

to have Ms. Ferrato be the sole residential parent is against the manifest weight of the evidence.

It appears that Mr. Kuntz asserts that, if the trial court’s conclusions about Mr. Kuntz’ drug

usage are discounted, the trial court’s decision to vacate the magistrate’s decision is not

supported by the evidence. We do not agree.

       {¶17} After conducting an independent review of the record, we cannot say that the trial

court abused its discretion in naming Ms. Ferrato as the sole residential parent or that its

conclusion is against the manifest weight of the evidence. There is evidence that both parties

deeply care about the well-being of I.F. and that both parties reside in excellent school districts

and live in adequate housing. Much of the dispute between the parties centers on the fact that

Ms. Ferrato would like I.F. to attend school in her home district of Lakewood, while Mr. Kuntz

would like I.F. to attend school in his home district of Medina. It is also clear that Mr. Kuntz and

Ms. Ferrato have difficulties communicating with each other.

       {¶18} At trial, both Mr. Kuntz and Ms. Ferrato testified. Mr. Kuntz is a mechanical

engineer, and Ms. Ferrato has degrees in marine biology and environmental engineering. Mr.
                                              10


Kuntz testified to his previous employment and indicated that he bought a house in Medina

County in 2008. And, while Ms. Ferrato has owned a home in Lakewood since 2003, she spent

several years working outside of the state before returning to Ohio in 2009. I.F. began living

with Mr. Kuntz in March of 2007 while Ms. Ferrato was living and working in Philadelphia.

After Ms. Ferrato stopped working in Philadelphia, she began working on a fishing boat in

Alaska. In between her contracts on the boat, she would return to Ohio to spend time with I.F.

Both parties also agreed that Ms. Ferrato’s mother spent a good deal of time with I.F. and that

the two had a good relationship which was encouraged by the parties.

       {¶19} Ms. Ferrato also testified to incidents of alleged past physical abuse by Mr. Kuntz

and expressed concern about Mr. Kuntz’ prior drug abuse and his potential for relapse. She

testified that she became concerned about I.F.’s behavior in early 2009 as I.F. “did not seem

happy or well-adjusted and he seemed frightened.” Ms. Ferrato indicated that I.F.’s behavior

made her concerned that Mr. Kuntz was using drugs again. In addition, Ms. Ferrato was

concerned that some marks on I.F. were cigarette burns and reported the concern to children and

family services.   According to the guardian ad litem, after investigation, children and family

services did not believe the marks were a safety concern. Ms. Ferrato asserted that Mr. Kuntz

often missed work or lost jobs because of his drug abuse, but Mr. Kuntz denied those allegations

entirely during his testimony.

       {¶20} Mr. Kuntz testified that he was diagnosed with ADHD when he was thirty-three

and denied abusing methamphetamines since 2004. Mr. Kuntz’ original physician ultimately

referred him to a psychiatrist for medications, which included several other prescription

medications prior to Desoxyn, a methamphetamine. And, while Mr. Kuntz had prescriptions for

multiple ADHD medications at once, he averred that he never took more than one of the drugs at
                                                 11


a time. He asserted that the doctor was prescribing different prescriptions to find one that

worked best. Mr. Kuntz admitted that, when he initially started taking Desoxyn, it was not

prescribed to him and that he obtained it through a friend who got it online. He stated that he

took it for approximately a month and a half without a prescription and that he took a five

milligram pill four to five times per day. He also admitted that he did not initially tell his

physician that he was taking Desoxyn, nor did he tell his physician that he formerly abused

methamphetamines.

       {¶21} In addition, Alfred Staubus, Ph.D., an expert in forensic toxicology, testified

concerning Mr. Kuntz’ initial drug results. Dr. Staubus testified that the initial report stated that

both amphetamines and methamphetamines were detected in the sample. He indicated that the

hair sample was taken from leg hair as opposed to head hair. He stated that this was significant

because leg hair grows slower than head hair and, thus, “you would expect to see leg hair having

a higher concentration [of a drug] than head hair.” Thus, when confronted with the drug test

report which concluded that “[i]t is * * * a very high number, therefore, very high usage[,]” Dr.

Staubus disagreed with that conclusion.       Dr. Staubus would not characterize the levels as

exceedingly high. However, Dr. Staubus also testified he was unable to determine if the results

represented use of Desoxyn (a prescribed methamphetamine) or a street methamphetamine; he

explained that the test would only indicate if methamphetamine was detected.

       {¶22} The guardian ad litem testified that she believed it was in I.F.’s best interest to

have shared parenting with Mr. Kuntz designated as the residential parent for school purposes.

She noted that both homes were appropriate for I.F. and that I.F. was bonded with both parents.

The guardian ad litem also spoke with Ms. Ferrato’s mother. Ms. Ferrato’s mother indicated that

she felt that both parties were good parents to I.F., although she was concerned about Mr. Kuntz’
                                                    12


past drug use. The guardian ad litem testified that she believed that I.F. needed stability and that

going to school in Mr. Kuntz’ district was likely to provide that. The guardian ad litem

expressed concern that, given Ms. Ferrato’s chosen profession and her previous work history, it

was likely that Ms. Ferrato would have to find work out of state. The guardian ad litem thought

it was in I.F.’s best interest to remain in Ohio.

       {¶23} The guardian ad litem also testified concerning Mr. Kuntz’ positive drug screen

and his ADHD. The guardian ad litem opined that Mr. Kuntz’ diagnosis was legitimate as more

than one doctor had diagnosed him with ADHD. She testified that during the times she met with

or spoke to Mr. Kuntz he did not appear to be under the influence of drugs. She noted that Mr.

Kuntz was not prescribed the Desoxyn until after the initial positive drug test.         However,

subsequent to that test, Mr. Kuntz’ drug test showed detectable levels of amphetamines and

methamphetamines, which was expected given his prescription for Desoxyn.

       {¶24} The guardian ad litem testified that I.F. told her that Ms. Ferrato and her mother

spoke badly about Mr. Kuntz and that made I.F. sad. In addition, there were concerns that both

parents were talking to I.F. about adult issues and that Ms. Ferrato repeatedly referred to Mr.

Kuntz as a drug addict in e-mail correspondence with the guardian ad litem. Ms. Ferrato testified

that she did speak with I.F. about Mr. Kuntz’ drug use but only after I.F. had asked about

whether she had used drugs.        The guardian ad litem was also concerned that Ms. Ferrato

repeatedly expressed concerns about Mr. Kuntz being a drug addict but nonetheless did not have

a problem with Mr. Kuntz spending weekends with I.F., which seemed contradictory to the

guardian ad litem.

       {¶25} Ultimately, a major factor in the trial court awarding custody to Ms. Ferrato, and

vacating the magistrate’s decision, was Mr. Kuntz’ positive drug screen, the circumstances
                                                  13


surrounding it, and Mr. Kuntz’ past history of drug abuse. See R.C. 3109.04(F)(1)(e). It is

undisputed that Mr. Kuntz tested positive for amphetamines and methamphetamines in his initial

drug screen. It is also undisputed that the prescriptions he was taking at the time did not account

for the drugs found in his system. Mr. Kuntz maintained at trial that the methamphetamines

detected in the test could be explained by his taking Desoxyn, which he admitted he was taking

without a prescription. Mr. Kuntz also admitted that he had not informed his physicians of his

former substance abuse problems, including his former abuse of methamphetamines. The trial

court clearly found this situation concerning. The trial court was also concerned that its records

did not contain the test results and assessments that the magistrate’s prior orders required. In

light of the entire record, the trial court had reason to question Mr. Kuntz’ credibility and

honesty. The magistrate noted in its October 2009 order that Mr. Kuntz asserted that the initial

positive drug screen was due to prescribed medications, and, yet, months later during the trial,

Mr. Kuntz maintained that the positive result was instead due to his illegal use of a controlled

substance, namely a prescription methamphetamine.          The fact that Mr. Kuntz was later

prescribed that controlled substance and the fact that the controlled substance is legitimately

utilized to treat ADHD, does not detract from the fact that Mr. Kuntz was not initially

forthcoming with the court. Moreover, the trial court was troubled by the fact that Mr. Kuntz has

not been forthcoming with his physicians about his prior methamphetamine addiction. Thus, his

physicians have been prescribing him a methamphetamine without knowledge that he was

formerly addicted to that substance. This combination of circumstances, combined with the trial

court’s observation that Mr. Kuntz’ results and assessments were not contained in its confidential

file, reasonably could lead the trial court to not only question whether Mr. Kuntz was sober but

also to question his ability to remain so in the future.
                                                  14


        {¶26} Moreover, it is clear that the trial court considered all the evidence and carefully

considered the magistrate’s decision which specifically discussed each of the factors. The trial

court noted that there were issues concerning some of Ms. Ferrato’s parenting choices, and it is

clear that it factored those into its decision.          In light of the trial court’s serious and

understandable concerns about Mr. Kuntz and his potential for substance abuse, we cannot say

that the trial court abused its discretion in concluding it was in I.F.’s best interest that Ms. Ferrato

be named the sole residential parent, nor is that decision against the manifest weight of the

evidence. Accordingly, we overrule Mr. Kuntz’ third assignment of error.

                                                  III.

        {¶27} In light of the foregoing, we overrule Mr. Kuntz’ assignments of error and affirm

the judgment of the Domestic Relations Division of the Medina County Court of Common Pleas.

                                                                                   Judgment affirmed.




        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.
                                                     15


       Costs taxed to Appellant.




                                                          EVE V. BELFANCE
                                                          FOR THE COURT



WHITMORE, P. J.
CONCURS.

DICKINSON, J.
CONCURRING.

       {¶28} I concur in the majority’s judgment and most of its opinion. I write separately

regarding Mr. Kuntz’s first assignment of error because the trial court incorrectly deprived Mr.

Kuntz of an opportunity to be heard on the issue of judicial notice as required by Rule 201(E) of

the Ohio Rules of Evidence. Mr. Kuntz’s first assignment of error is that the trial court exercised

improper discretion by considering certain factual materials that were part of the case file, but

were not presented as evidence at the magistrate’s hearing of this matter in April and May 2010.

His argument is that, in ruling on objections to the magistrate’s decision, the trial court

considered “incompetent” evidence by looking beyond the hearing record. Mr. Kuntz has argued

that the trial court incorrectly relied on a magistrate’s summary of testimony offered by Mr.

Kuntz in September 2009 regarding a drug test that was positive for methamphetamines. He has

also argued that the trial court incorrectly relied on the fact that subsequent drug testing results

were not present in the court’s confidential file.

       {¶29} Under Rule 201 of the Ohio Rules of Evidence, a court may take judicial notice of

“facts of the case” at any stage of the proceeding regardless of whether either party requests it.

Evid. R. 201(A), (C), (F). “It is well established that a trial court may take judicial notice of
                                                16


prior proceedings in the immediate case before it.” State v. Brown, 9th Dist. No. 24119, 2008-

Ohio-5846, ¶ 16. “A party is entitled upon timely request to an opportunity to be heard as to the

propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior

notification, the request may be made after judicial notice has been taken.” Evid. R. 201(E).

       {¶30} The Staff Notes to Evidence Rule 201 provide that the rule, “in its entirety,

reflects existing Ohio practice and, except for the added clarifying language to subdivision (A)

which is not intended to result in a contrary construction, is identical to Federal Evidence Rule

201.” Twinsburg v. Wesby, 9th Dist. No. 25813, 2012-Ohio-569, ¶ 7 (quoting 1980 Staff Note,

Evid.R. 201). “The usual method of establishing adjudicative facts is through the introduction of

evidence, ordinarily consisting of the testimony of witnesses. If particular facts are outside the

area of reasonable controversy, this process is dispensed with as unnecessary. A high degree of

indisputability is the essential prerequisite.” Id. (quoting Advisory Committee Notes to Fed. R.

Evid. 201). “A request to be heard under Fed. R. Evid. 201(e) must be made in a ‘timely’

manner. . . . If a party opposes notice, timeliness is measured from the date the party learns that

notice has been requested or is being considered.” Mueller and Kirkpatrick, Federal Evidence,

Section 2:7 (3d ed).

       {¶31} The trial court took judicial notice of historical facts of this case in the process of

ruling on objections to a magistrate’s decision rendered after a hearing. Although the rule allows

for a request for hearing to be made after judicial notice has been taken, in this case, Mr. Kuntz

was not notified that the trial court was considering taking judicial notice of certain historical

facts in the record until after the court rendered judgment. Although he was entitled to an

opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter

noticed, Mr. Kuntz could not have moved the trial court for reconsideration of the judgment.
                                                17


Avon Lake Sheet Metal Co. Inc. v. Huntington Envtl. Sys. Inc., 9th Dist. No. 03CA008393, 2004-

Ohio-5957, ¶ 11. The trial court incorrectly relied on facts of which it had taken judicial notice

without notifying the parties before rendering judgment so that Evidence Rule 201 could be

satisfied.

        {¶32} The error is harmless, however, because Mr. Kuntz has not explained how the

outcome would have been different if he had been afforded an opportunity to be heard “as to the

propriety of taking judicial notice and the tenor of the matter noticed.” Evid. R. 201(E); Civ. R.

61. Mr. Kuntz’s only argument is that the trial court should not have been permitted to consider

anything that was not taken as evidence at the hearing of the matter regardless of whether it was

contained in the record. He has not put forth any argument challenging the validity of the facts

judicially noticed, the propriety of the trial court taking judicial notice under the circumstances,

or the validity of the conclusions drawn from the facts judicially noticed. Further, I am unable to

discern any valid argument to support the proposition that judicial notice was improper under

Evidence Rule 201(B).

        {¶33} First, Mr. Kuntz has argued that the trial court improperly concluded that he had

changed his story about why he tested positive for methamphetamines in September 2009.

Although he testified at the hearing before the magistrate that the result was caused by his

ingestion of a prescription medication that he had obtained illegally, he has argued that the trial

court should not have considered any evidence to the contrary because there was no evidence

admitted at the hearing that he had previously testified that he had a valid prescription for the

drug before taking the test. He has not argued that the magistrate incorrectly recounted his

earlier testimony. He has not argued that, based on the magistrate’s summary, the trial court

incorrectly concluded that Mr. Kuntz had changed his story about the positive drug test. His
                                                18


only argument is that the trial court should not have been permitted to look outside the hearing

transcript.

        {¶34} Mr. Kuntz has also argued that the trial court should not have considered the fact

that the confidential file did not include more than one subsequent negative drug test. The trial

court noted that, in February 2010, the magistrate had ordered Mr. Kuntz to immediately submit

to urinalysis and take monthly tests thereafter. The magistrate had ordered the test results to be

filed in the court’s confidential file, presumably for Mr. Kuntz’s protection. The trial court also

noted that the only result in the file indicated that Mr. Kuntz had waited over a month to submit

to a test and then failed to follow up with subsequent testing prior to the final hearing date. Mr.

Kuntz has not disputed that the magistrate issued the orders the trial court described. He has not

argued that he submitted to the first test in less than a month after the magistrate ordered it nor

has he argued that he took any subsequent tests. He has argued only that there was no evidence

offered at the hearing about whether Mr. Kuntz had followed the magistrate’s orders and what

his subsequent drug testing revealed. If Mr. Kuntz had followed the magistrate’s orders and

obtained subsequent negative drug testing results, it would have behooved him to provide proof

of that at the hearing before the magistrate. I see no argument against judicial notice that Mr.

Kuntz could have successfully made at a hearing before the trial court under Evidence Rule

201(E). Therefore, I would hold that the trial court’s error is harmless.

        {¶35} Because Mr. Kuntz has not made and I cannot discern any argument to support

the proposition that judicial notice was not proper under section (B) of Evidence Rule 201, I

would hold the error is harmless. Therefore, I concur in the majority’s judgment.
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APPEARANCES:

DAVID L. MCARTOR and KRISTOPHER K. AUPPERLE, Attorneys at Law, for Appellant.

RANDALL M. PERLA, Attorney at Law, for Appellee.
