[Cite as Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734.]




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




BARRIENTOS,

        APPELLEE,                                                  CASE NO. 5-11-22

        v.

BARRIENTOS,                                                        OPINION

        APPELLANT.




                Appeal from Hancock County Common Pleas Court,
                           Domestic Relations Division
                           Trial Court No. 2007-DR-426

                       Judgment Reversed and Cause Remanded

                          Date of Decision: November 7, 2011




APPEARANCES:

                Kelton K. Smith, for appellee.

                William E. Clark, for appellant.
Case No. 5-11-22



       WILLAMOWSKI, Judge.

       {¶ 1} Defendant-appellant, Guillermo M. Barrientos, brings this appeal

from the judgment of the Court of Common Pleas of Hancock County, Domestic

Relations Division, granting a divorce, dividing property, and awarding spousal

support to plaintiff-appellee, Joyce A. Barrientos. For the reason set forth below,

the judgment is reversed.

       {¶ 2} On August 22, 2000, Guillermo was injured in an industrial accident

and was hospitalized for three weeks. When he returned home, Joyce provided for

his care, as they had been living together for nearly two years prior to the accident.

The couple then married on October 20, 2000. A settlement agreement was

reached concerning the accident, and Guillermo received a large sum of money in

checks made out to him. The parties used the money to make various purchases,

lived on some of it, and invested some.

       {¶ 3} On December 12, 2007, Joyce filed a complaint for divorce. A final

hearing was held on November 13, 2008.                 The magistrate issued her

recommendations on December 17, 2008.            Guillermo filed objections to the

magistrate’s recommendations. On February 17, 2011, the trial court overruled

the objections and issued its decision. The trial court issued its judgment entry

granting the divorce on April 14, 2011. Guillermo appeals from this judgment and

raises the following assignments of error.

                                          -2-
Case No. 5-11-22



                            First Assignment of Error

             The trial court erred in applying an “abuse of discretion”
      standard of review.

                          Second Assignment of Error

             The trial court’s characterization of the settlement proceeds as
      marital property is against the manifest weight of the evidence.

                           Third Assignment of Error

             The magistrate improperly used the federal poverty level to
      establish the amount of spousal support.

                           Fourth Assignment of Error

            The duration of spousal support is unsupported by both case
      law and the evidence.

      {¶ 4} In the first assignment of error, Guillermo alleges that the trial court

used the wrong standard of review in evaluating the case. Guillermo alleges that

the trial court used an abuse-of-discretion standard rather than conducting an

independent review as required by Civ.R. 53(D)(4)(d):

             If one or more objections to a magistrate’s decision are timely
      filed, the court shall rule on those objections. In ruling on
      objections, the court shall undertake an independent review as to the
      objected matters to ascertain that the magistrate has properly
      determined the factual issues and appropriately applied the law.
      Before so ruling, the court may hear additional evidence but may
      refuse to do so unless the objecting party demonstrates that the party
      could not, with reasonable diligence, have produced that evidence
      for consideration by the magistrate.



                                        -3-
Case No. 5-11-22



Thus, the trial court’s review of a magistrate’s decision is de novo. Goldfuss v.

Traxler, 3d Dist. No. 16-08-12, 2008-Ohio-6186, ¶ 7.         The trial court must

independently review the record and make its own factual and legal findings, but it

may rely upon the credibility determinations made by the magistrate. Gilleo v.

Gilleo, 3d Dist. No. 10-10-07, 2010-Ohio-5191, ¶ 47. Once the de novo review is

complete, the trial court may adopt, reject, or modify the magistrate’s decision.

Tewalt v. Peacock, 3d Dist. No. 17-10-18, 2011-Ohio-1726, ¶ 31.

       {¶ 5} When reviewing the judgment of the trial court, an appellate court

uses an abuse-of-discretion standard. Id. at ¶ 11. A failure of the trial court to

conduct an independent review of the magistrate’s recommendations as required

by Civ.R. 53(D)(4)(d) is an abuse of discretion. Figel v. Figel, 3d Dist. No. 10-08-

14, 2009-Ohio-1659, ¶ 10. The appellate court must presume that a trial court has

performed an independent review of the magistrate’s recommendations unless the

appellant affirmatively demonstrates the contrary. Gilleo at ¶ 46.

       {¶ 6} Here, Guillermo claims that the trial court failed to conduct an

independent review of the record. The trial court ruled on the objections to the

magistrate’s recommendations on February 17, 2011, and stated as follows:

              Upon consideration of the objections to the magistrate’s
       decision as filed by the Defendant the Court finds, pursuant to Rule
       53(D) of the Ohio Rules of Civil Procedure as follows:



                                        -4-
Case No. 5-11-22



            The Court, in reviewing the party’s motions, finds that the
      Magistrate’s findings are reasonable determinations and are not an
      abuse of discretion. * * *

            ***

           As such, the Court finds that the Magistrate’s
      recommendation as to spousal support is not an abuse of discretion.
      ***

            ***

             In his fifth objection, Defendant contends that the Magistrate
      erred in findings that Defendant’s income was sixty thousand dollars
      ($60,000) prior to his work-related injury. However, in reviewing
      the transcript, the Court has found testimony from both Plaintiff
      * * * and Defendant * * * purporting that, prior to the injury,
      Defendant’s income was at least sixty thousand dollars ($60,000) per
      year. As such, the Court finds that the Magistrate’s determination
      was not an abuse of discretion. Defendant’s fifth objection is found
      not well taken and accordingly overruled.

              In his sixth objection, Defendant contends that Magistrate’s
      finding regarding Defendant’s available medical insurance benefits
      was in error. The Magistrate found that Defendant had “insurance
      benefits available and there was no evidence of current expense.”
      * * * Having reviewed the transcript, the Court finds that Defendant
      testified on direct examination that he had started receiving some
      type of assistance in paying medical bills. Furthermore, the Court
      found that there was no evidence of Defendant’s current medical
      expense. As such, the Court finds that the Magistrate’s finding was
      not an abuse of discretion. Defendant’s sixth objection is found not
      well taken and accordingly overruled.

             It is therefore ORDERED, ADJUDGED, and DECREED
      that, pursuant to Rule 53(D) of the Ohio Rules of Civil Procedure,
      that the objections of [Guillermo] to the Magistrate’s decision as
      filed on December 17, 2008 are found not well taken and
      accordingly overruled.

                                       -5-
Case No. 5-11-22




(Emphasis added.)

       {¶ 7} In the entry, the trial court cited the correct rule twice. However, the

trial court repeatedly appeared to be reviewing the record to determine whether an

abuse of discretion occurred. This is not the same as an independent review of the

matter and would not be proper. See Jones v. Smith, 187 Ohio App.3d 145, 2010-

Ohio-131, 931 N.E.2d 592, ¶ 14. The failure to conduct a de novo review of the

magistrate’s decision and independently evaluate the evidence and apply the law is

an abuse of discretion by the trial court. Figel, 2009-Ohio-1659, at ¶ 10. A mere

recitation of the rule number alone is not sufficient for this court to presume that

the proper standard of review was used when, as here, the opinion repeatedly

refers to how there was no abuse of discretion by the magistrate. Based upon the

language of the trial court’s decision and order of February 17, 2011, this court is

unable to determine that the proper standard of review was applied. Thus, the first

assignment of error is sustained.

       {¶ 8} In the second assignment of error, Guillermo claims that the

magistrate and subsequently the trial court erred in determining that the settlement

proceeds were marital property. Guillermo claims that this determination was

against the manifest weight of the evidence. A review of the matter indicates that

the issue to be determined is which party bears the initial burden of showing that


                                        -6-
Case No. 5-11-22



the property is either separate or marital. However, having determined that the

trial court may not have used the correct standard of review when reviewing the

magistrate’s recommendations, this issue need not be determined by this court at

this time. This court therefore makes no ruling on whether the property is separate

or marital, leaving this issue to the trial court to determine upon proper review. As

the prior findings may change upon further review, this court dismisses the second

assignment of error as moot.

       {¶ 9} The third and fourth assignments of error claim that the trial court

erred in considering the federal poverty level when determining the amount of

spousal support and erred in determining the duration of the spousal support. Like

the second assignment of error, these claims are also subject to review by the trial

court on remand. They are thus moot as well, and the third and fourth assignments

of error are dismissed.

       {¶ 10} For the reason set forth above, we reverse the judgment of the Court

of Common Pleas of Hancock County, Domestic Relations Division, and remand

for further proceedings.

                                                                 Judgment reversed
                                                               and cause remanded.
ROGERS, P.J., and PRESTON, J., concur.




                                         -7-
