[Cite as Jackson v. Lashley, 2019-Ohio-1943.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                      KERI LEE JACKSON,

                                          Plaintiff-Appellee,

                                                  v.

                                 ELIJAH JOSHUA LASHLEY,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 18 MA 0104


                              Civil Appeal from the
    Court of Common Pleas, Domestic Relations Division, of Mahoning County, Ohio
                              Case No. 16 DR 74

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                           JUDGMENT:
                                      Reversed and Remanded


 Keri Lee Jackson, Pro Se, (NO BRIEF FILED), for Plaintiff-Appellee, and

 Elijah Joshua Lashley, Pro Se, A683-025, Lake Erie Correctional Institution, P.O. Box
 8000, Conneaut, Ohio 44030, for Defendant-Appellant.
                                       Dated:
                                    May 17, 2019
                                                                                        –2–




 Donofrio, J.

        {¶1}    Defendant-appellant, Elijah Lashley, appeals from a Mahoning County
Common Pleas Court, Domestic Relations Division judgment denying his “motion to
amend judgment entry in the interest of justice,” in which appellant sought a visitation
order with his children.
        {¶2}    Appellant and plaintiff-appellee, Kerri Jackson, were married on
November 7, 2014. They share two minor children. Appellee filed a complaint for divorce
on February 12, 2016. At the time, appellant was incarcerated in the county jail awaiting
trial on charges relating to appellee. Appellant filed a pro se response, which in part
requested visitation with the children.
        {¶3}    A magistrate held the divorce hearing. The magistrate found that appellant
had now been convicted of felonious assault and kidnapping with the victim being
appellee. The magistrate granted the divorce and named appellee as the children’s
residential parent. The magistrate further found that appellant should not be granted
parenting time rights at that time due to his incarceration and the serious nature of his
crimes against appellee. Neither party filed objections to the magistrate’s decision. The
trial court entered judgment in accordance with the magistrate’s decision on May 27,
2016.
        {¶4}    On March 20, 2018, appellant, now from prison and still acting pro se, filed
a “motion to amend judgment in the interest of justice.” In this motion, appellant petitioned
the court for a visitation order.    Appellant asserted that because of a program he
completed in prison, his children would be permitted to visit him at the prison.
        {¶5}    The magistrate set the matter for hearing on April 30, 2018.            The
magistrate stated appellant was permitted to appear by telephone for this and all other
hearings in this matter but that it was up to appellant to make the arrangements with the
prison to initiate the call to the court on the date and time of the hearing.
        {¶6}    On the day of the hearing, appellant appeared by telephone. But the
magistrate found that appellee had not been served with a copy of the motion and she
did not appear. Therefore, the magistrate rescheduled the hearing for June 18, 2018.



Case No. 18 MA 0104
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The magistrate noted again that appellant was permitted to appear by telephone for all
hearings in this matter but that it was appellant’s responsibility to make the arrangements
and initiate the call at the proper date and time.
        {¶7}    On June 18, the magistrate once again rescheduled the hearing “due to
lack of service.” This time the magistrate did not indicate if service was perfected on
appellant, appellee, or both parties. Additionally, the magistrate did not note whether
appellant appeared at this hearing by telephone or if he failed to appear. Again, the
magistrate noted that appellant was permitted to appear at all future hearings by
telephone. This time the magistrate set the hearing for August 21, 2018.
        {¶8}    On July 2, 2018, a certified mail receipt was filed with the court indicating
that service had been made on appellee’s last known attorney of record. There is no
similar indication of service on appellant.
        {¶9}    On July 26, 2018, appellant filed a notice of change of address with the
court. The notice informed the court of appellant’s new address at a different correctional
facility.
        {¶10}   The magistrate held the hearing as scheduled on August 21, 2018.
Appellant did not appear by telephone. Appellee also did not appear. The magistrate
subsequently issued a decision denying appellant’s motion for failure to prosecute.
        {¶11}   Two weeks after the magistrate issued his decision, on September 5,
2018, appellant filed a motion for reconsideration. Appellant alleged he did not appear
by telephone because he was not notified of the time and date of the August 21, 2018
hearing.
        {¶12}   The trial court entered judgment in accordance with the magistrate’s
decision and denied appellant’s motion for lack of prosecution. The judge signed and
dated the judgment on September 6, 2018. The judgment entry, however, was file
stamped September 10, 2018.
        {¶13}   On September 13, 2018, the magistrate issued a decision stating that the
court would disregard appellant’s motion for reconsideration because a motion for
reconsideration is considered a nullity.




Case No. 18 MA 0104
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       {¶14}   Appellant filed a timely notice of appeal on October 1, 2018, from the trial
court’s September 10, 2018 judgment denying his motion. Appellant, still acting pro se,
now raises one assignment of error.
       {¶15}   Appellant’s sole assignment of error states:

               THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       DISMISSED PLAINTIFF’S COMPLAINT FOR VISITATION FOR LACK OF
       HIS PERSONAL APPEARANCE.

       {¶16}   Appellant contends that his due process rights were violated when the trial
court denied his motion for failure to attend the hearing because he never received notice
of the day and time of the hearing. He goes on to make arguments concerning the best
interests of the children and why the court should not deny him contact with his children.
He notes that even if the court does not permit him visits with his children, he is still
seeking a parenting time order that would permit him to call the children, send them
letters, and visit via video conferencing. In sum, appellant asks this court to reverse the
trial court’s judgment and remand the matter with instructions to the trial court to conduct
the hearing on his motion.
       {¶17}   In order to preserve for appeal the trial court's adoption of a magistrate's
findings of fact and conclusions of law, a party must file objections to the magistrate's
decision and state with particularity all grounds for objection. Civ.R. 53(E)(3)(b)(ii). In
order to be timely, the party filing objections must do so within 14 days of the filing of the
decision. Civ.R. 53(E)(3)(b)(i).
       {¶18}   In this case, appellant’s “motion for reconsideration” was actually an
objection to the magistrate’s decision.
       {¶19}   On August 22, 2018, the magistrate issued his decision denying
appellant’s motion based solely on appellant’s failure to appear by telephone at the
hearing. On September 5, 2018, within the 14-day time limit for filing objections, appellant
filed what he labeled a “motion for reconsideration.” But a reading of appellant’s “motion
for reconsideration” indicates that appellant timely objected to the magistrate’s decision.
In the “motion for reconsideration,” appellant argued with particularity the grounds of his
objection. He argued that he was not notified of the time and date of the August 21



Case No. 18 MA 0104
                                                                                       –5–


hearing and, therefore, he did not attend by telephone. He asked the court to reset the
matter for a hearing.
       {¶20}   Many courts have recognized differently-titled motions as objections to
magistrate’s decisions. See Matter of M.W., 12th Dist. Butler No. CA2017-01-011, 2017-
Ohio-7358, ¶ 21 (juvenile court properly construed motions to “set aside” magistrate's
decision as objections to the magistrate's decision); Jackson v. Jackson, 188 Ohio App.3d
493, 2010-Ohio-3531, 935 N.E.2d 937 (6th Dist.) ¶ 26-27 (court noted that the appellant’s
motion met Civ.R. 53’s specificity requirements for making objections and found,
“[a]lthough appellant's motion was inartfully drafted, the substance of it may be logically
construed as timely objections to the magistrate's decision under Civ.R. 53(D)(3).”); State
ex rel. Kleinman v. Indus. Com'n of Ohio, 10th Dist. Franklin No. 04AP-692, 2005-Ohio-
3098, ¶ 2 (relator filed an “application for reconsideration” of the magistrate's decision,
which the court construed as objections to the magistrate's decision).
       {¶21}   In this case the trial court never had a chance to rule on appellant’s
motion/objections. Appellant filed his motion/objections on September 5, 2018 (the last
day to timely file objections). On September 6, 2018, the trial court signed and dated its
judgment entry. This entry found that neither party had filed objections to the magistrate’s
decision and adopted that decision. The entry was not file-stamped until September 10,
2018. Then on September 13, 2018, the magistrate issued a decision denying appellant’s
motion/objections, finding that a motion for reconsideration is considered a nullity. The
trial court never entered judgment on the magistrate’s September 13 decision.
       {¶22}   What likely happened in this case is that the trial court entered judgment
on the magistrate’s August 22 decision without ever seeing or being made aware of
appellant’s motion/objections. Had the court been aware of the motion/objections, it
would have mentioned so in its judgment entry.
       {¶23}   Thus, the appropriate remedy here is a remand to the trial court so that it
can rule on appellant’s specific, timely objections to the magistrate’s August 22, 2018
decision.
       {¶24}   Accordingly, appellant’s sole assignment of error has merit and is
sustained.




Case No. 18 MA 0104
                                                                              –6–


      {¶25}    For the reasons stated above, the trial court’s judgment is hereby
reversed.   This matter is remanded so that the trial court may rule on appellant’s
objections filed on September 5, 2018.



Waite, P. J., concurs.

Robb, J., concurs.




Case No. 18 MA 0104
[Cite as Jackson v. Lashley, 2019-Ohio-1943.]




         For the reasons stated in the Opinion rendered herein, the sole assignment of
 error is sustained and it is the final judgment and order of this Court that the judgment
 of the Court of Common Pleas, Domestic Relations Division, of Mahoning County, Ohio,
 is reversed. We hereby remand this matter to the trial court so that the trial court may
 rule on appellant’s objections filed September 5, 2018. Costs to be taxed against the
 Appellee.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
