[Cite as In re H.R.K., 2012-Ohio-4054.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 97780



                                          IN RE: H.R.K.
                                          A Minor Child

                               [Appeal By M.J.K., Father]


                               JUDGMENT:
                         REVERSED AND REMANDED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. CU 08139384


     BEFORE:      Moore, J., Belfance, J., and Whitmore, P.J.*
     (*Sitting by assignment: Judges of the Ninth District Court of
Appeals)

        RELEASED AND JOURNALIZED:                    September 6, 2012
[Cite as In re H.R.K., 2012-Ohio-4054.]
ATTORNEY FOR APPELLANT

Eugene L. Kramer
1422 Euclid Avenue
Suite 545
Cleveland, Ohio 44115


FOR APPELLEE

H.L.H., pro se
11802 Franklin Boulevard
Lakewood, Ohio 44107


GUARDIAN AD LITEM

Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129
[Cite as In re H.R.K., 2012-Ohio-4054.]
CARLA D. MOORE, J.:

        {¶1} This cause came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of

counsel.

        {¶2} M.J.K. appeals from the judgment of the Juvenile Division of the

Court of Common Pleas of Cuyahoga County.              This court reverses and

remands this matter for further proceedings consistent with this opinion.

                                          I.

        {¶3} M.J.K. (“Father”) and H.H. (“Mother”) have one minor child in

common. The child is in Father’s custody. In 2011, the Cuyahoga County

Juvenile Court issued an order allowing Mother weekly periods of supervised

visitation with the child at a certain facility. The parties agreed to schedule

this visitation on Thursdays from 4 until 6 p.m. Father contends that, due to

his work schedule, he arranged for another adult to transport the child to the

facility for these periods of visitation.      However, a few months after the

visitation at the facility commenced, Father learned that this individual could

no longer transport the child for visitation. Father purportedly contacted the

facility, which informed him that it had no other dates and times available

that would accommodate his work schedule.            As a result, Father filed a

motion with the trial court to modify the visitation order.          Thereafter,
Mother filed a motion to show cause as to why Father should not be held in

contempt for his failure to comply with the visitation order.

      {¶4} While Father’s motion was pending, the trial court issued a show

cause order requiring Father to appear at a contempt hearing on November

18, 2011, before a court magistrate regarding his failure to abide by the terms

of the visitation order. Father responded to the show cause order by filing an

answer and memorandum in which he claimed that his compliance with the

visitation order had become impossible due to circumstances outside of his

control.

      {¶5} After the hearing, the magistrate entered a “Magistrate’s Pre-trial

Order,” in which the magistrate set forth,

      IT IS ORDERED THAT: [Father ]is found to be in Contempt of
      Court. []Father is fined $150.00 and sentenced to three (3) days
      in jail. Fine is to be paid within 30 days[.]

      Purge Order: Jail sentence is stayed.         If [F]ather violates
      visitation schedule again jail sentence will be imposed.
      (Unbracketed capitalization in the original.)

      {¶6} Father filed a motion to set aside the “magistrate’s order.” The

trial court denied Father’s motion in a journal entry and adopted the

magistrate’s “decision.” Father timely appealed from the trial court’s order

and presents two assignments of error for our review. We have consolidated

the assignments of error to facilitate our discussion.
                                        II.

     I. The trial court abused its discretion and acted against the
     manifest weight of the evidence in finding that [Father] was in
     contempt of court.

     II. The trial court erred in imposing a fine against [Father] for
     contempt of court without affording [Father] an opportunity to
     [p]urge himself of contempt with respect to that portion of the
     penalty.

     {¶7} In his first assignment of error, Father argues that the trial

court’s contempt finding was against the manifest weight of the evidence

because circumstances beyond Father’s control had made it impossible for

him to comply with the visitation order. In his second assignment of error,

Father argues that the trial court erred by failing to provide him the

opportunity to purge the fine imposed against him. We decline to reach the

merits of Father’s assignments of error because we conclude that this matter

must be remanded to the trial court for further proceedings in compliance

with the Rules of Juvenile Procedure.

     {¶8} Initially, we note that the record before us contains no transcript

of the magistrate’s hearing.   Further, the magistrate’s adjudication was

erroneously captioned a “magistrate’s pre-trial order,” when the substance of

the adjudication is that of a “magistrate’s decision.”   Adjudications titled

“pretrial orders” under former Juv.R. 40 are now referred to as “magistrate’s

orders.” See Staff Notes to 2006 Amendments to Juv.R. 40(D). Pursuant to
Juv.R. 40(D)(2)(a), “a magistrate may enter orders without judicial approval if

necessary to regulate the proceedings and if not dispositive of a claim or

defense of a party.”          Therefore, a magistrate’s ability to issue “orders” is

limited to regulatory, non-dispositive orders.                  See Mayfield v. Costanzo &

Son Co., 8th Dist. No. 96890, 2012-Ohio-271, ¶ 15 (noting that the magistrate

“never issued any orders that were dispositive of the issues” and instead

issued only scheduling orders); J & B Fleet Indus. Supply, Inc. v. Miller, 7th

Dist. No. 09 MA 173, 2011-Ohio-3165, ¶ 30 (magistrates may issue orders

regulating      discovery);      Beagle      v.   Beagle,      10th     Dist.    No.     07AP-494,

2008-Ohio-764, ¶ 12 (magistrates may issue temporary support orders);

Campbell v. Pryor, 5th Dist. No. 2010CA00231, 2011-Ohio-1222, ¶ 40

(magistrate cannot issue order sentencing party to jail term, but instead may

only make recommendation to the trial court as to the sentencing). 1                                A

magistrate’s order must be “identified as a magistrate’s order in the

caption[.]” Juv.R. 40(D)(2)(a)(ii).

       {¶9} In contrast to a magistrate’s order, a magistrate’s decision is

governed by Juv.R. 40(D)(3).                A magistrate’s decision is required when


          We recognize that these cases interpret Civ.R. 53, which governs magistrates’ orders in civil
       1


cases; however, this court has utilized past versions of Civ.R. 53 to provide guidance in interpreting
Juv.R. 40, which contains parallel provisions and similar language pertaining to magistrates’ orders
and decisions. See, e.g., In re E.B., 8th Dist. No. 85035, 2005-Ohio-401, ¶ 11, fn. 2 (recognizing
that Civ.R. 53(E) and Juv.R. 40(E) contain “essentially the same language”).
deciding “any matter referred under Juv.R. 40(D)(1).”         Juv.R. 40(D)(3)(i)

permits the juvenile court to refer matters to a magistrate “for one or more of

the purposes described in Juv.R. 40(C)(1)[.]”          Such purposes include

determining motions and conducting trials in cases not involving youthful

offender determinations. Juv.R. 40(C)(1)(a) and (b). A magistrate’s decision

must be “identified as a magistrate’s decision in the caption[.]”        Juv.R.

40(D)(3)(a)(iii). Unlike a magistrate’s order, a magistrate’s decision is not

effective until adopted by the trial court. Juv.R. 40(D)(4)(a).

      {¶10} A party may object to the magistrate’s decision within 14 days of

its filing.   Juv.R. 40(D)(3)(b)(i).   Where a party objects to a magistrate’s

factual finding, the trial court must conduct an “independent review as to the

objected matters to ascertain that the magistrate has properly determined

the factual issues and appropriately applied the law.”       Juv.R. 40(D)(4)(d).

The independent review requires the trial court to “conduct a de novo review

of the facts and an independent analysis of the issues to reach its own

conclusions about the issues in the case.” (Citation omitted.) Radford v.

Radford, 8th Dist. Nos. 96267 and 96445, 2011-Ohio-6263, ¶ 13 (construing

identical independent review requirement of Civ.R. 53(D)(4)(d)).

      {¶11} To aid in the court’s “independent review,” if the objecting party

has challenged a magistrate’s finding of fact, the party must supply the trial
court with “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.” Juv.R. 40 (D)(3)(b)(iii). Absent leave of the court, the objecting

party has 30 days after filing objections to file the transcript or affidavit.

      {¶12} This court has held that it is an abuse of a trial court’s discretion

to adopt a magistrate’s decision over an objection to factual findings prior to

its receipt of a timely requested transcript or other materials necessary to

properly conduct an independent review of the matter. See In re R.C., 8th

Dist. No. 96396, 2011-Ohio-4641, ¶ 8, citing Savioli v. Savioli, 99 Ohio App.3d

69, 71, 649 N.E.2d 1295 (8th Dist.1994) (holding that “a trial court abuses its

discretion when it rules on objections to a [magistrate’s] report without the

benefit of a transcript”); compare In re Magar v. Konyves, 8th Dist. No. 85832,

2005-Ohio-5723, ¶ 16 (regularity of proceedings presumed where no

transcript of magistrate hearing was filed in support of objections).

      {¶13}      With the distinctions between magistrates’ orders and

magistrates’ decisions in mind, we turn to the “magistrate’s pre-trial order” at

issue in the present case. The language of this “pre-trial order” purports to

be dispositive of the issue of contempt. See Kapadia v. Kapadia, 8th Dist.

No. 96910, 2012-Ohio-808, ¶ 3-5 (an order containing both a finding of

contempt and imposition of a sentence, even if provided the opportunity to
purge the sentence, is a final order of contempt). Although the trial court

indicated that it “adopt[ed] the [magistrate’s d]ecision,” the initial mislabeling

of the magistrate’s adjudication did not alert Father to the need to file a

transcript to allow for independent review of the issue by the trial court. See

In re T.S., 9th Dist. No. 11CA0033-M, 2012-Ohio-858, ¶ 8 (“failure to properly

label a magistrate’s decision as a decision, combined with the magistrate’s

failure to provide the appropriate warning concerning objections, created

confusion and prejudiced the parties”).

         {¶14} Because the record contains no transcript of the November 18,

2011 proceedings before the magistrate, we cannot discern how the trial court

could have conducted an independent review of the factual issues that Father

argues made it impossible for him to comply with the trial court’s visitation

order.     For the foregoing reasons, we conclude that this matter must be

remanded to the trial court for further proceedings consistent with Juv.R. 40.

         {¶15} Accordingly, the trial court’s judgment is reversed and this

matter is remanded to the trial court for further proceedings consistent with

the Rules of Juvenile Procedure. Based on the nature of our remand, we

decline to address the merits of Father’s assignments of error because they

are not yet ripe for review.
      This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover of said appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



CARLA D. MOORE, JUDGE*

BETH WHITMORE, P.J.,* and
EVE V. BELFANCE, J.,* CONCUR

(*Sitting by assignment: Judges of the Ninth District Court of Appeals)
