[Cite as Doherty v. Doherty, 2012-Ohio-4886.]


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

RALPH F. DOHERTY, II                                 C.A. No.     11CA0067-M

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CYNTHIA S. DOHERTY                                   COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellee                                     CASE No.   09DR0364

                                 DECISION AND JOURNAL ENTRY

Dated: July 2, 2012



        BELFANCE, Judge.

        {¶1}    Appellant, Ralph Doherty, appeals an order of the Medina County Court of

Common Pleas, Domestic Relations Division, that overruled his objections to a magistrate’s

decision and ordered him to pay spousal support. This Court reverses.

                                                I.

        {¶2}    Mr. Doherty moved the trial court to hold his wife in contempt, and Ms. Doherty

requested a modification of spousal support. On April 8, 2011, a magistrate recommended that

Mr. Doherty’s motion to show cause be denied and that Ms. Doherty be awarded $85 per month

in spousal support. The trial court adopted the magistrate’s recommendations and entered

judgment on the same day. On April 21, 2011, Mr. Doherty filed “[p]reliminary [o]bjections” to

the magistrate’s decision, noting that he would “supplement his objections upon receiving the

transcript of proceedings which has been ordered from the court reporter.” On May 16, 2011,

the trial court summarily “denie[d]” his objections, concluding that because Mr. Doherty had not
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filed a praecipe for preparation of the transcript or paid the deposit against costs for its

preparation, it was within the court’s prerogative to “presume[] that the Magistrate conducted the

proceedings with regularity and adopt[] [her] findings of fact.” Mr. Doherty appealed, raising

three assignments of error. Ms. Doherty did not file an appellate brief in response.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT
       WHEN IT PREMATURELY DENIED APPELLANT’S OBJECTIONS.

       {¶3}    In his first assignment of error, Mr. Doherty has argued that the trial court erred

by denying his objections by application of Loc.R. 1.07 without notice and an opportunity to

cure his failure to file a praecipe for preparation of the transcript and to pay the deposit against

transcript preparation costs. We agree.

       {¶4}    The Local Rules of the Medina County Court of Common Pleas, Domestic

Relations Division, contain specific requirements relative to obtaining a transcript of the

proceedings and paying the court reporter for the transcript as well as the possibility of forfeiture

of a litigant’s objections for failing to comply. Loc.R. 1.07 provides:

       A. If a transcript is required, a praecipe to the Court Reporter requesting a
       transcript of the proceedings must be delivered to and acknowledged by the Court
       Reporter at the time of the filing of the Objection * * *. Failure to timely file the
       praecipe may result in the denial or dismissal of an Objection * * *.

       B. A deposit of costs to secure the transcript must be paid to the Court Reporter
       within 7 days of the filing of the Objection * * *. If the deposit for the costs of a
       transcript is not made within 14 days of the filing of the Objection * * *, the
       Objection * * * may be denied or dismissed. Irrespective of whether a transcript
       is ordered for the purpose of an Appeal, Objection, Motion to Set Aside or other
       reason, the Court Reporter shall not commence the preparation of the transcript
       until the deposit has been made.

(Emphasis added.) This Court recently considered the procedure required to implement the

sanctions provisions contained in Loc.R. 1.07 in a similar case. See Lakota v. Lakota, 9th Dist.
                                                 3


No. 10CA0122-M, 2012-Ohio-2555. In Lakota, we concluded that in order to implement the

sanctions provision of Loc.R. 1.07, the trial court was required to “provide the parties with some

notice specific to the case at hand and a reasonable opportunity to cure the defect.” Lakota at ¶

13. As we explained in that case,

       [A]lthough we would not go so far as to say that Loc.R. 1.07 is invalid on its face,
       we are persuaded that, in light of the potential that a party may be deprived of the
       opportunity to object and to preserve error for appeal in a meaningful way, the
       trial court should give notice of its potential sanction in a manner that is at least
       consistent with the notice required under Civ.R. 53(D)(3)(a)(iii). Ruling on
       objections as a sanction during the thirty-day period for filing a transcript may
       deprive parties of the meaningful opportunity to file objections and preserve error
       for appeal, and consistent with the interests at stake, a trial court that does so
       should act with caution after notice.

Id. at ¶ 12. We concluded that “[t]he notice afforded by Loc.R. 1.07 itself is insufficient in this

regard.” Id. at ¶ 13. We also concluded that the fact that a trial court adopts a magistrate’s

decision and enters judgment before objections are filed does not necessarily mean that the trial

court conducted an independent review sufficient to meet the requirements of Civ.R.

53(D)(4)(d). Id. at ¶ 16.

       {¶5}    As in Lakota, the trial court erred by overruling Mr. Doherty’s objections as a

sanction for failing to follow the requirements of Loc.R. 1.07 without notice and an opportunity

to cure the deficiency. Mr. Doherty’s first assignment of error is therefore sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT
       WHEN IT VIOLATED ITS OWN LOCAL RULE OF COURT WHICH
       REQUIRED AN ORAL HEARING ON OBJECTIONS.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT
       WHEN IT FAILED TO CONDUCT AN INDEPENDENT REVIEW OF THE
       OBJECTIONS.
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       {¶6}    Mr. Doherty’s second and third assignments of error, which argue alternative

grounds for reversing the trial court’s decision, are moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶7}    Mr. Doherty’s first assignment of error is sustained.         His second and third

assignments of error are moot. The judgment of the Medina County Court of Common Pleas is

reversed, and this matter is remanded to the trial court so that Mr. Doherty may have the

opportunity to proceed from the point that his objections were timely filed.

                                                                                 Judgment reversed
                                                                               and cause remanded.




       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.

       Costs taxed to Appellee.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
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WHITMORE, P. J.
CONCURS.

CARR, J.
DISSENTING.

        {¶8}    I respectfully dissent.

        {¶9}    I do not agree that Loc.R. 1.07 fails to provide adequate notice of the possible

sanctions the trial court may impose for failure to comply with the requirements of the rule.

        {¶10} I would address the second assignment of error and conclude that there was no

prejudicial error.

        {¶11} I would address the third assignment of error and conclude that the trial court

conducted the proper review of the objections. When a party who objects to the magistrate’s

factual determinations fails to provide a transcript of the proceedings in support of his objections,

“the trial court may only examine the ultimate legal conclusions in light of the facts found by the

magistrate.” In re Estate of Thompson, 9th Dist. No. 22403, 2005-Ohio-4261, ¶ 9. Because it

necessarily already did so when it issued its pre-objections judgment, the trial court conducted

the necessary review.

        {¶12} In this case, the trial court entered its judgment before Mr. Doherty filed his

objections. Civ.R. 53(D)(4)(e)(i) permits a trial court to enter judgment during the 14-day period

allowed for the filing of objections. Civ.R. 53(D)(4)(c) only allows the trial court to adopt the

magistrate’s decision in the absence of objections if it determines that there are no errors of law

or other defects evident on the face of the magistrate’s decision. Accordingly, the trial court

must necessarily review the magistrate’s application of the law to the facts as the magistrate

found them before it may adopt the decision as its own judgment. It is presumed that the trial
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court is aware of its obligations and that it applies the law accordingly. State v. Rivera-

Rodriguez, 9th Dist. Nos. 07CA009154, 07CA009166, 2008-Ohio-1461, ¶ 38 (Carr, J.,

concurring in part and dissenting in part), citing Walczak v. Walczak, 5th Dist. No.

2003CA00298, 2004-Ohio-3370, ¶ 22. I would conclude that the trial court properly conducted

the required review of the magistrate’s application of the law to the facts when it first adopted

the magistrate’s decision and entered its judgment.

       {¶13} Based on the above, I would affirm the trial court’s judgment.


APPEARANCES:

JOHN V. HEUTSCHE, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Attorney at Law, for Appellee.
