[Cite as In re C.M., 2011-Ohio-3104.]




                                IN THE COURT OF APPEALS

                        SECOND APPELLATE DISTRICT OF OHIO

                                   MONTGOMERY COUNTY



IN RE:                                            :

         C.M., et al.                             :       CASE NO. CA 24127

                                                  :            OPINION

                                                  :

                                                  :


         APPEAL FROM MONTGOMERY COUNTY COURT OF COMMON PLEAS
                           JUVENILE DIVISION
                     Case Nos. JC 07-8994, JC 07-8995



Lawrence J. White, 2533 Far Hills Avenue, Dayton, Ohio 45419, for appellee

Adrienne Brooks, 500 E. Fifth Street, Dayton, Ohio 45402, for appellant

Stephanie Allen, 3640 Colonel Glenn Highway, Wright State University, Student
Union, B015, Dayton, Ohio 45435, guardian ad litem



                                        HENDRICKSON, J.

         {¶1} Defendant-appellant, Brett McSherry, appeals the decision of the

Montgomery County Court of Common Pleas, Juvenile Division, granting custody

to plaintiff-appellee, Melissa Mounce, and establishing child support obligations.
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We affirm the decision of the juvenile court.

           {¶2} McSherry and Mounce were involved in a romantic relationship

that resulted in the birth of two children, C.M. and T.M.. At the time of the

proceedings below, C.M. was nine years old, and T.M. was ten. The initial

proceedings began when Mounce filed a complaint to establish paternity of C.M.

and a motion to set McSherry's child support obligation. McSherry then filed

motions for custody and to appoint a Guardian Ad Litem (GAL) for the children.

          {¶3} After a hearing was held on the matter and the magistrate

accepted a report from the children's GAL, the magistrate released an opinion on

June 25, 2008 awarding custody of both children to McSherry because his home

was more appropriate. On July 11, 2008, Mounce filed objections to the

magistrate's decision, and filed a request for a transcript. The trial court, in an

entry dated August 4, 2008, granted Mounce's request for a transcript and granted

her an additional 14 days after the receipt of the transcript to file supplemental

objections. Mounce filed her supplemental objections on August 29, 2008 in

which she informed the court that McSherry was in the process of moving to

Wyoming to manage a 67,160 acre ranch. On October 1, 2008, McSherry filed a

motion to dismiss Mounce's objections because they were not timely filed, and also

filed a notice of intent to relocate to Wyoming.

          {¶4} On October 2, 2008, the trial court issued a decision in which it

remanded the matter to the magistrate so that the magistrate could consider

further evidence regarding McSherry's move to Wyoming. The trial court

specifically stated that it considered "whether either parent has established a
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residence, or is planning to establish a residence, outside this state" a significant

factor in determining custody according to R.C. 3109.04(F)(1)(j).

          {¶5} After a second hearing and a second GAL's report, the magistrate

released a decision on March 16, 2009, awarding custody to Mounce because a

move to Wyoming would be too detrimental to the children. The magistrate also

determined that McSherry earned an annual salary of $60,000 a year, and set his

child support obligation at $400 per child per month, $139.17 per month in medical

support, and $200 per month in arrearages. On March 30, 2009, McSherry filed

objections to the magistrate's second decision, which were overruled by the trial

court in its August 25, 2009 decision adopting the magistrate's order. McSherry

now appeals the decision of the trial court to adopt the magistrate's second order,

and raises the following four assignments of error.

         {¶6} Assignment of Error No. 1:

         {¶7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

AWARDING CUSTODY OF THE PARTIES' MINOR CHILDREN TO THE

APPELLEE IN ITS SUBSEQUENT DECISION DATED MARCH 16, 2009, AS THE

SAME IS NOT IN THE BEST INTEREST OF THE MINOR CHILDREN, AND IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND THE TRIAL

COURT ALSO ERRED AND ABUSED ITS DISCRETION IN AND AWARDING

DEFENDANT PARENTING TIME THAT IS ONLY THE STANDARD ORDER."

         {¶8} In his first assignment of error, McSherry asserts that the trial court

abused its discretion in awarding custody to Mounce, and by limiting his parenting

time to the standard order.
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         {¶9} R.C. 3109.04(F)(1)(a) through (j) contains a non-exclusive list of

best interest factors a trial court must consider when making an initial custody

determination. These factors "relate primarily to the health and well being of the

child and the parents." Meyer v. Anderson, Miami App. No. 01CA53,

2002-Ohio-2782, ¶24.

         {¶10} Although a trial court is required to consider these factors, it retains

broad discretion in making a best-interest determination. White v. White, Clark

App. No. 2009 CA 17, 2009-Ohio-4311, ¶9. An award of custody will not be

reversed by a reviewing court where the judgment is supported by competent,

credible evidence. Goldsboro v. Goldsboro, Miami App. No. 2006-CA-48,

2007-Ohio-2135, ¶32, citing Lamoreaux v. Lamoreaux (Mar. 29, 1993), Miami App.

No. 92 CA 7. Weight and credibility of evidence, and factual disputes in the

testimony, are matters for the trial court to resolve. Id.

         {¶11} "The discretion which a trial court enjoys in custody matters should

be accorded the utmost respect, given the nature of the proceeding and the impact

the court's determination will have on the lives of the parties concerned. The

knowledge a trial court gains through observing the witnesses and the parties in a

custody proceeding cannot be conveyed to a reviewing court by a printed record."

Miller v. Miller (1988), 37 Ohio St.3d 71, 74. (Citations omitted.) Indeed, the trial

court's determination of credibility is "even more crucial in a child custody case,

where there may be much evident in the parties' demeanor and attitude that does

not translate to the record well." (Emphasis sic.) Davis v. Flickinger, 77 Ohio

St.3d 415, 419, 1997-Ohio-260. Thus, a reviewing court will not reverse a custody
                                                                                        5

determination unless the trial court has abused its discretion by acting in a manner

that is arbitrary, unreasonable, or unconscionable. Pater v. Pater (1992), 63 Ohio

St.3d 393, 396; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

          {¶12} The trial court properly considered the factors, and did not abuse

its discretion by awarding custody to Mounce. In fulfilling its statutory duty to

consider the factors, the trial court considered the following evidence.

          {¶13} Regarding factor (a) "the wishes of the child's parents regarding

the child's care," the court found that both parties desired legal custody of the

children, but that according to factor (b) "the wishes and concerns of the child, as

expressed to the court," both children expressed their desire to reside with

Mounce.

          {¶14} Regarding factor (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," the court noted that while both parents have a loving and

appropriate relationship with the children, Mounce's oldest daughter has severe

mental health issues, suicidal thoughts, and reckless behavior that may affect the

children. However, the children have a strong and healthy bond with their

maternal grandmother, with whom Mounce and the children reside.

          {¶15} The trial court found that in regard to factor (d) "the child's

adjustment to the child's home, school, and community," the children are doing

very well in their current school, and that T.M.'s special needs are being met

through his school.

          {¶16} Factor (e) directs a court to consider "the mental and physical
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health of all persons involved in the situation," and the trial court noted that while

McSherry does not have any physical or mental health issues, Mounce has battled

cancer in the past. The court found that Mounce's health concerns limit her ability

to generate income for her family and care for her children. However, the court

also noted that Mounce has been in remission for five years and is currently in

good health.

         {¶17} Regarding factor (f), "the parent more likely to honor and facilitate

court-approved parenting time rights or visitation and companionship rights," the

court found that there was no testimony or evidence to suggest that either parent is

more likely to honor or facilitate the court approved parenting time.

         {¶18} The trial court also considered factor (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," and found that McSherry had not failed to make payments once the

magistrate set his child support obligation.

         {¶19} The trial court also found that according to factor (h), neither party

had previously 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, and that

neither party had continuously and willfully denied the other parent's right to

parenting time in accordance with an order of the court, specific to factor (i).

         {¶20} Regarding factor (j), "whether either parent has established a

residence, or is planning to establish a residence, outside this state," the court

found that McSherry's move to Wyoming would cause the children to move
                                                                                       7

approximately 3,000 miles away from where the children grew up and currently

reside. The trial court also noted that the children seemed "really happy" at the

ranch in Wyoming, and that the home there is appropriate for two growing children

who enjoy the outdoor activities the ranch could provide.

         {¶21} After balancing the factors, as well as taking into consideration the

GAL's suggestion that the children remain with Mounce, the trial court determined

that it was in the children's best interest to stay with their mother. This decision

was supported by the evidence deduced at the hearings, and is not otherwise

arbitrary, unreasonable, or unconscionable.

         {¶22} McSherry argues that despite the trial court's consideration of the

factors, the evidence weighs in favor of granting him custody. McSherry first

argues that Mounce's residence is inappropriate for the children because seven or

eight people reside in the small home owned by Mounce's mother, including

Mounce's mother and her boyfriend. The record does reflect that the home is

small and requires C.M. to share a bed with her mother, but the court found that

the evidence also demonstrated that the children are well established at their

mother's home, and that Mounce and her mother have begun renovations to

expand the home to include five bedrooms. The trial court also considered that

the children are well adjusted to Mounce's community. Specifically, C.M. is on the

honor roll and engaged in extracurricular activities, and T.M. is doing well in his

school and is having his special needs met there.

         {¶23} Although McSherry argues that Mounce's health problems have

decreased her ability to care for the children, the court considered evidence that
                                                                                      8

the children have a strong bond with their mother and their maternal grandmother,

with whom they live. The court also found that despite her health problems,

Mounce has been very involved in the children's lives, when McSherry has not.

Specifically, the trial court considered that unlike Mounce, who has been involved

in the children's medical appointments, and has attended every school conference

and extracurricular activity, McSherry has failed to attend these important

occasions.

         {¶24} McSherry also argues that his home is more appropriate for the

children. While the evidence does suggest that his home in Wyoming is

appropriate for the children, the court considered the GAL's report and other

evidence, which indicated that a move 3,000 miles from Mounce and the children's

extended family would be more detrimental to the children than any benefit they

would have by residing in Wyoming permanently.

         {¶25} Regarding parenting time, we cannot say that the trial court

abused its discretion in awarding time pursuant to the standard order. In support

of his argument, McSherry asserts that because the magistrate gave him custody

after the initial hearing, he should be awarded extended visitation time during the

children's school vacations. However, at the time the magistrate made its initial

determination, McSherry lived in Ohio. With his move to Wyoming, the trial court

did not abuse its discretion in ordering parenting time pursuant to the standard

order.

         {¶26} After reviewing the record, we cannot say that the trial court

abused its discretion in awarding custody or visitation time. McSherry's first
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assignment of error is overruled.

         {¶27} Assignment of Error No. 2

         {¶28} "MAGISTRATE ERRED IN COMPUTATION OF THE

DEFENDANT'S CHILD SUPPORT OBLIGATION."

         {¶29} In his second assignment of error, McSherry argues that the trial

court erred in calculating his child support obligation based on a $60,000 annual

salary. We do not agree, and find the trial court properly calculated McSherry's

child support obligation.

         {¶30} A trial court has discretion related to the calculation of child

support, and, absent an abuse of discretion, an appellate court will not disturb a

child support order. Amlin v. Amlin, Champaign App. No. 2008 CA 15,

2009-Ohio-3010. According to R.C. 3119.023, the trial court must determine the

child support obligation based on the computation worksheet. R.C. 3119.01(C)(5)

defines “income” for child support calculation purposes as the parent's gross

income, and R.C. 3119.01(C)(7) defines gross income as, " the total of all earned

and unearned income from all sources during a calendar year, whether or not the

income is taxable, and includes income from salaries, wages, overtime pay, and

bonuses * * * commissions; royalties; tips; rents; dividends * * *.”

         {¶31} McSherry now asserts that the trial court abused its discretion by

including his grocery allowance, housing, utilities, and other stipends in his income

tabulation. However, the trial court considered McSherry's own testimony in which

he estimated his annual income for running the ranch as $60,000. Specifically,

McSherry testified that the ranch is paying for his housing, and that he has a
                                                                                   10

"ranch account for ranch expenses, whether they be groceries, vets, bill paying,

you know, stuff like that." McSherry later testified that his income would be "about

sixty thousand dollars a year if you include everything." In addition to McSherry's

testimony, he also submitted an affidavit of income and financial disclosure on

which he listed his annual salary as $60,000.

         {¶32} While McSherry asserts that he should have received several

set-offs, gross income under R.C. 3119.01(C)(7) includes the "the total of all

earned and unearned income from all sources during a calendar year, whether or

not the income is taxable." (Emphasis added.) See Sapinsley v. Sapinsley, 171

Ohio App.3d 74, 2007-Ohio-1320 (finding abuse of discretion where trial court

failed to include car allowance in gross income); and Streza v. Streza, Lorain App.

No. 05CA008644, 2006-Ohio-1315 (finding abuse of discretion where trial court did

not include father's per diem allowances in gross income).

         {¶33} Having properly calculated the gross income, the trial court did not

abuse its discretion by using McSherry's self-reported income at $60,000 for child

support computation purposes. McSherry's second assignment of error is,

therefore, overruled.

         {¶34} Because McSherry's final assignments of error are interrelated, we

will address them together to facilitate ease of discussion.

         {¶35} Assignment of Error No. 3

         {¶36} "THE COURT ERRED IN REMANDING THE MATTER FOR

HEARING ON SOLELY ONE FACET OF THE BEST INTEREST TEST AS

ARTICULATED IN O.R.C. 3119.04 (F)(1)(i), AS THE SAME SHOULD HAVE
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BEEN CHARACTERIZED IN A MOTION FOR CHANGE OF CUSTODY, NOT

OBJECTIONS."

         {¶37} Assignment of Error No. 4:

         {¶38} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

REMANDING THE MATTER ON OBJECTIONS OF THE APPELLANT WHEN

THE SAME WERE NOT FILED TIMELY, AND SHOULD HAVE BEEN COUCHED

AS A MOTION FOR CHANGE OF CUSTODY. THE COURT FURTHER ERRED

AND ABUSED ITS DISCRETION IN FAILING TO TAKE INTO CONSIDERATION

THE RESPONSE TO THE PLAINTIFF'S OBJECTIONS, WHICH WAS

DELIVERED TO THE OFFICE OF THE CLERK OF COURT FOR FILING WITHIN

DAYS OF FILING OF THE ORIGINAL OBJECTIONS AND REMAINED

UNTOUCHED AND UNFILED FOR AN UNKNOWN REASON UNTIL OCTOBER

1, 2008, THE DATE PRIOR TO THE COURT'S DECISION FOR REMAND, AND

WAS ONLY DISCOVERED BY COUNSEL DURING THE COURSE OF THE

HEARING ON THE REMANDED ISSUE."

         {¶39} In his third and fourth assignments of error, McSherry argues that

Mounce should have been required to prove a change in circumstances once he

was granted custody by the magistrate, that the trial court erred by adopting the

magistrate's decision as the initial custody determination, and that the trial court

should not have considered Mounce's objections because they were untimely filed.

 We disagree.

         {¶40} Although McSherry argues that the trial court should have required

Mounce to demonstrate a change of circumstances before changing custody, the
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record indicates that the trial court did not consider the magistrate's initial decision

a fully disposed-of custody determination. Instead, the trial court accepted

Mounce's objections, permitted her to file subsequent objections once the

transcript was prepared, and even granted her additional time to file supplemental

objections once she had access to the transcripts.

          {¶41} McSherry claims that the trial court adopted the magistrate's

decision in full, and directs us to the magistrate's June 25, 2008 decision,

captioned: "MAGISTRATE'S DECISION AND JUDGE'S ORDER OF

PATERNITY, PARENTING TIME AND LEGAL CUSTODY." While it is true that

the trial court electronically signed the magistrate's decision and sent notice of a

final appealable order to the parties, Mounce had the ability under the juvenile

rules to file objections to the trial court.

          {¶42} According to Juv.R. 40(D)(3)(e)(i), "the court may enter a judgment

either during the fourteen days permitted by Juv.R. 40(D)(3)(b)(i) for the filing of

objections to a magistrate's decision or after the fourteen days have expired. If

the court enters a judgment during the fourteen days permitted by Juv.R.

40(D)(3)(b)(i) for the filing of objections, the timely filing of objections to the

magistrate's decision shall operate as an automatic stay of execution of the

judgment until the court disposes of those objections and vacates, modifies, or

adheres to the judgment previously entered."

          {¶43} By way of his fourth assignment of error, McSherry asserts that the

trial court should not have addressed Mounce's objections because they were

untimely filed. The magistrate's decision was filed on June 25, 2008, and
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Mounce's objections were filed on July 11, 2008, 16 days later. However,

according to Juv.R. 40(D)(4)(b), "whether or not objections are timely filed, a court

may adopt or reject a magistrate's decision in whole or in part, with or without

modification. A court may hear a previously-referred matter, take additional

evidence, or return a matter to a magistrate."

         {¶44} In an entry and order dated August 4, 2008, the trial court noted

the date of the magistrate's decision as June 25, 2008 and that Mounce filed her

objections on July 11, 2008. The trial court was therefore aware that Mounce had

filed her objections 16 days after the magistrate's decision was filed.

Nonetheless, the trial court granted Mounce's motion for a transcript and further

granted an additional 14 days after the receipt of the transcript in which to file

supplemental objections. Had the trial court wished to dismiss Mounce's filings as

untimely, it had the discretion to do so in its order and entry, but chose to address

the motion and objections. See Abate v. Abate (March 29, 2000), Summit App.

No. CA 19560, 2000 WL 327227 (finding trial court's consideration of untimely

objections an implicit grant of an extension of time in which to file the objections);

and Tobey v. Arnold (Aug. 14, 2000), Mahoning App. No. 98-CA-166, 2000 WL

1262453 (noting that a trial court's consideration of untimely objections will be

construed as the granting of leave to file late objections).

         {¶45} McSherry also argues that his own untimely objections, filed

October 1, 2008, had actually been delivered to the clerk of courts shortly after

Mounce's July 11, 2008 objections. McSherry now argues that the certificates of

service attached to his motions show July 19, 2008 as the date he filed them with
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the court, and that counsel did not know about the delay in filing until the middle of

the remand hearing on March 10, 2009. However, the fact remains that

McSherry's motions were officially filed on October 1, 2008. Although McSherry

could have easily verified that the filings were completed after he allegedly

submitted them on or near July 19 2008, he did not do so and approximately eight

months passed before the error was discovered.

         {¶46} We find nothing in the record to indicate that the clerk erred in

filing or time-stamping McSherry's documents on the dates he tendered them, and

"thus we presume 'the regularity of the Clerk of Courts performance of the filing of

documents required of the office and as noted in the records required to be kept by

the Clerk.'" Richardson v. Indus. Comm, Montgomery App. No. 22797,

2009-Ohio-2548, ¶22, quoting George v. Pequinot (Aug. 20, 1992), Logan App.

No. 8-92-9, 1992 WL 209328, *2.

         {¶47} Regardless of the supposed error in filing, McSherry was not

prejudiced because the trial court remanded the issue to the magistrate to consider

the relocation issue, thus giving him an opportunity to be fully heard on the

relocation issue. Even if the trial court had considered McSherry's motion

regarding Mounce's untimely filings, the trial court had the discretion to sua sponte

grant leave to file untimely objections by considering Mounce's filing.

         {¶48} Having found the trial court properly considered Mounce's

objections, we next address McSherry's argument that the trial court abused its

discretion by remanding the case to the magistrate to determine what impact the

move to Wyoming would have on the children. Although McSherry argues that he
                                                                                      15

was not contemplating a move to Wyoming at the time of the initial hearing, the

fact remains that he did move his family to Wyoming before the trial court made a

final ruling on the objections before it. Therefore, the trial court was acting within

its discretion by sending the case back to the magistrate to consider what impact

the move would have on the best interest determination. See Juv.R. 40(D)(4)(b)

(allowing a court to "hear a previously-referred matter, take additional evidence, or

return a matter to a magistrate").

         {¶49} McSherry now argues that the proper procedural method for

challenging the initial custody determination would have been for Mounce to file a

change of custody motion and allege a change of circumstances.

         {¶50} However, the trial court's adoption of the original magistrate's order

was still pending a decision on Mounce's objections at the time the trial court and

magistrate were made aware of the move to Wyoming. Therefore, the trial court

had not made its final decision as contended by McSherry, and did not do so until

its "DECISION AND JUDGMENT CONCERNING OBJECTIONS TO THE

DECISION OF THE MAGISTRATE," filed August 25, 2009. See Coleman v.

Coleman, Clark App. No. 2003-CA-39, 2004-Ohio-1018, ¶12 (holding that "a

judgment does not become final until the trial court either approves, rejects, or

modifies the magistrate's findings and enters judgment in favor of one of the

parties").

         {¶51} Additionally, we note that the trial court addressed McSherry's

argument that a change of circumstances was necessary in order to revisit the

custody issue. In its August 25, 2009 decision and judgment, the trial court cited
                                                                                       16

Juv.R. 40(D)(4)(a) for the proposition that a magistrate's decision is not effective

unless adopted by the court, and that according to Juv.R. 40(D)(4)(d), 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." The trial court, therefore, stated that the purpose of its decision

and entry was to conduct the de novo review of the magistrate's second decision,

by and through the first, in order to determine the merits of McSherry's motion for

legal custody. The trial court did not err in proceeding as such.

         {¶52} In the alternative, McSherry argues that even if the trial court

properly considered the relocation as part of the initial custody determination, it

abused its discretion by granting Mounce custody. However, as we have

discussed in the first assignment of error, the trial court was in the best position to

consider the evidence before it, and did not abuse its discretion in finding that a

3,000 mile move from the children's home and extended family was more

detrimental to the children than any benefit a spacious and appropriate home

would give the children.

         {¶53} The trial court considered evidence that the children were happy,

successful, healthy, well-adjusted, had special needs met within the Ohio school

district, and enjoyed living with their mother in Ohio. While the children had fun on

the ranch and enjoyed spending time with their father there, both expressed their

desire to remain in Ohio, a sentiment bolstered by the recommendation of the

children's GAL that Mounce be awarded custody. We cannot say that the trial

court abused its discretion in relying on McSherry's relocation to Wyoming as it did
                                                                                      17

when considering the best interest factors.

         {¶54} Having found that the trial court properly considered Mounce's

objections and that the trial court did not abuse its discretion by placing significant

weight on McSherry's relocation, McSherry's final two assignments of error are

overruled.

             Judgment affirmed.


POWELL, J., and RINGLAND, J., concur.

(Hon. Stephen W. Powell, Hon. Robert P. Ringland, and Hon. Robert A.
Hendrickson, Twelfth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Lawrence J. White
Adrienne Brooks
Stephanie Allen
Hon. Nick Kuntz
