[Cite as Sellers v. Gibson, 2016-Ohio-4649.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


JESSICA E. SELLERS                             :     JUDGES:
                                               :     Hon. Sheila G. Farmer, P.J.
        First Petitioner - Appellee            :     Hon. Patricia A. Delaney, J.
                                               :     Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
NATHAN C. GIBSON                               :     Case No. 15-CA-75
                                               :
        Second Petitioner - Appellant          :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Domesic
                                                     Relations Division, Case No. 2002-
                                                     DR-01653




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 28, 2016




APPEARANCES:

For First Petitioner-Appellee                        For Second Petitioner-Appellant

CARL MCCOY                                           NATHAN C. GIBSON, pro se
57 East Main Street                                  1216 East Eastman Street
Newark, Ohio 43055                                   Zanesville, Ohio 43701
Licking County, Case No. 15-CA-75                                                          2

Baldwin, J.

       {¶1}   Second Petitioner-appellant Nathan C. Gibson appeals from the September

10, 2015 Judgment Entry of the Licking County Court of Common Pleas, Domestic

Relations Division.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 17, 2014, appellee Jessica Sellers filed a motion seeking to

reallocate parental rights and responsibilities with respect to her son, Marcus (DOB

10/24/2001). Appellee Sellers sought to be designated the temporary legal custodian

and residential parent. At the time the motion was filed, appellant Nathan Gibson, Marcus’

biological father, was incarcerated.    Appellant Gibson had been Marcus’ residential

parent.

       {¶3}   On July 25, 2014, Sarah Smithson, appellant Gibson’s significant other, filed

a Motion to Intervene as Third Party Petitioner. The motion was granted as memorialized

in an Order filed on the same day. On August 4, 2014, Smithson filed a motion asking

that she be granted temporary and permanent legal custody of Marcus until appellant

Gibson was released from custody, an ex parte motion seeking temporary custody of the

child, and a motion requesting hair follicle drug testing of appellee Jessica Sellers.

Smithson also filed a motion for an in camera interview of the minor child.

       {¶4}   The Magistrate, in a Magistrate’s Order filed on August 7, 2014, granted the

motion for an in camera interview, but scheduled the other motions for a hearing on

August 19, 2014. Pursuant to a Magistrate’s Order filed on August 25, 2014, the

Magistrate entered an order designating Smithson as the temporary legal custodian and

an order granting the motion for hair follicle drug testing. The Magistrate declined to enter
Licking County, Case No. 15-CA-75                                                        3


a temporary parenting time order for appellee Sellers. Pursuant to an Agreed Entry filed

on March 12, 2015, appellee Sellers was granted parenting time with the minor child and

was ordered to submit to random drug testing by the court.

      {¶5}   An oral hearing before a Magistrate was held on August 11, 2015 on

appellee Sellers’s motion to reallocate parental rights and responsibilities and Smithson’s

motion for custody. The Magistrate, in a Decision filed on September 10, 2015,

recommended that the trial court grant appellee Sellers’s motion and overrule Smithson’s

motion. The Magistrate, in his Decision, noted that while appellant Gibson had been

Marcus’ residential parent, he had been convicted of a felony count of child endangering

and was incarcerated as of the date of the hearing. The Magistrate found that appellant

Gibson, therefore, was an unsuitable parent. The Magistrate, in his Decision, further

found that appellee Sellers was a suitable parent.

      {¶6}   The trial court, as memorialized in a Judgment Entry filed on September 10,

2015, approved and adopted the Magistrate’s Decision.

      {¶7}   Smithson, on September 22, 2015, filed objections to the Magistrate’s

Decision and appellant Gibson, on September 24, 2015, also filed objections. Both

argued that appellee Sellers was an unfit parent who had a history of drug abuse and did

not have a valid driver’s license and that she subjected her children to abusive and drug-

infested environments. Both also claimed that appellee Sellers was still involved in a

relationship with the same abusive boyfriend. Appellee Sellers filed a memorandum

contra the objections on October 2, 2015.

      {¶8}    Smithson, on October 6, 2015, filed a Notice of Appeal, appealing from the

trial court’s September 10, 2015 Judgment Entry. Her case was assigned Case No. 15-
Licking County, Case No. 15-CA-75                                                          4


CA-73. Appellant Gibson filed a Notice of Appeal on October 19, 2015. His case was

assigned Case No. 15-CA-75.

       {¶9}   This Court, pursuant to a Judgment Entry filed on November 9, 2015 in

Case No. 15-CA-75, remanded the matter to the trial court for the purpose of ruling on

any outstanding objections. The trial court, in an Opinion filed on November 16, 2015,

overruled the objections and approved and adopted the Magistrate’s Decision. The trial

court, in its Opinion, noted, in part, that neither party had requested or provided the trial

court with a transcript of the proceedings before the Magistrate.

       {¶10} Pursuant to a Judgment Entry filed on February 8, 2016 in Case No. 15-CA-

73, this Court dismissed Smithson’s appeal for want of prosecution because no brief had

been filed. Smithson did not sign the brief filed by appellant Gibson in Case No. 15-CA-

75.

       {¶11} Appellant Gibson now raises the following assignments of error on appeal:

       {¶12} I.     THE TRIAL COURT ABUSED ITS DISCRETION, COMMITTED

REVERSIBLE ERROR, AND RULED AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE WHEN AWARDING CUSTODY OF THE MINOR CHILD TO HIS MOTHER

AS THE EVIDENCE DEMONSTRATES A FINDING THAT THE MOTHER WAS UNFIT.

       {¶13} II.   THE DECISION OF THE REALLOCATION OF PARENTAL RIGHTS

BY TRIAL COURT IS NOT IN THE BEST INTEREST OF THE MINOR CHILD AND IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Licking County, Case No. 15-CA-75                                                           5




                                                I, II

       {¶14} Appellant Gibson, in his two assignments of error, argues that the trial

court’s decision to award custody of the minor child to appellee Sellers is against the

manifest weight of the evidence and is unsupported by the evidence.

       {¶15} In the case sub judice, the Magistrate, in a Decision adopted by the trial

court, recommended that the trial court grant appellee Sellers’ motion to relocate parental

rights and responsibilities so as to designate her the residential parent. The Magistrate

found that there had been a change in circumstances due to appellant Gibson’s

incarceration, that appellant Gibson, therefore, was an unsuitable parent, and that

appellee Sellers was a suitable parent.

       {¶16} When appellant Gibson filed his objections to the Magistrate's Decision, he

failed to present a transcript of the Magistrate's hearing to the trial court for its review.

This Court has held, “where an appellant fails to provide a transcript of the original hearing

before the magistrate for the trial court's review, the magistrate's findings of fact are

considered established and may not be attacked on appeal.” Green Tree Servicing, L.L.C.

v. St. John, 5th Dist. Stark No. 2013 CA 00092, 2015–Ohio–1111, ¶ 18 quoting Doane v.

Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL 474267 (May 2, 2001); State v. Leite,

5th Dist. Tuscarawas No.1999AP090054, 2000 WL 502819 (Apr. 11, 2000); Fogress v.

McKee, 5th Dist. Licking No. 99CA15, 1999 WL 668580 (Aug. 11, 1999); and Strunk v.

Strunk, 5th Dist. Muskingum No. CT96–0015, 1996 WL 787981 (Nov. 27, 1996).

Accordingly, we review the assignments of error only to analyze whether the trial court
Licking County, Case No. 15-CA-75                                                         6


abused its discretion in reaching specific legal conclusions based upon the established

facts. He v. Zeng, 5th Dist. Licking No.2009–CA–00060, 2010–Ohio–2095, ¶ 23.

       {¶17} We note that, in the case sub judice, both appellee Seller and Smithson, a

nonparent, sought legal custody of Marcus. “In a child custody case arising out of a

parentage action between a natural parent of the child and a nonparent, a trial court must

make a parental unsuitability determination on the record before awarding legal custody

of the child to the nonparent.” In re Hockstok, 98 Ohio St.3d 238, 2002–Ohio–7208, 781

N.E.2d 971, at the syllabus.

       {¶18} As noted by the court in Tabler v. Snider, 7th Dist. Noble App. No. 08 NO

357, 2010–Ohio–1545 at paragraph 22, citing Hockstok at ¶ 17, quoting In re Perales, 52

Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977). “Accordingly, it is well settled that in custody

disputes between parents and nonparents, ‘a court may not award custody to the

nonparent ‘without first determining that a preponderance of the evidence shows that the

parent abandoned the child; contractually relinquished custody of the child; that the parent

has become totally incapable of supporting or caring for the child; or that an award of

custody to the parent would be detrimental to the child.’ “

       {¶19}    In the case sub judice, the Magistrate, in his Decision, stated, in relevant

part, as follows:

               … the Magistrate finds that the evidence establishes that there has

       been a change in circumstances since the most recent parenting decree

       with respect to the second petitioner, who has been Marcus’ residential

       parent. The evidence with respect to the second petitioner establishes that
Licking County, Case No. 15-CA-75                                                       7


      he has been convicted of a felony count of child endangerment and that he

      was incarcerated in the Ohio penal system as of the date of the hearing.

             The Magistrate finds from these facts that the second petitioner is, at

      this time, an unsuitable parent as he is totally incapable of caring for Marcus

      when he is incarcerated in prison.

             The Magistrate further finds that while the first petitioner has had her

      challenges including substance abuse and residing with an abusive

      gentleman friend in the past, as of the date of the hearing, the evidence

      establishes that she is a suitable parent. She has a residence where she

      lives with her mother and two other children. She ended her relationship

      with her former gentleman friend following a physical altercation involving

      the first petitioner and her other minor son who resides with her. The first

      petitioner is employed with Universal Veneer, earning $9.00 an hour. Ms.

      Gibson (sic) has undergone drug testing in January and June of 2015

      yielding negative results. She has maintained sobriety since July of 2014.

      After having experienced considerable difficulty in attempting to visit Marcus

      since losing custody of him in 2011, the first petitioner has been able to see

      him at her mother’s and at the second petitioner’s sister’s places. More

      recently, during the pendency of this action, the first petitioner has visited

      with Marcus more regularly and has rekindled her relationship with him. The

      evidence further establishes that Marcus has a good relationship with the

      first petitioner and her children.
Licking County, Case No. 15-CA-75                                                         8


              The evidence admitted into the record further establishes that the

       third party petitioner [Smithson] is an appropriate person to parent Marcus

       as she has been doing for several years together with the second petitioner

       and as she has done on her own since he has been incarcerated. Had the

       evidence established that the first petitioner was an unsuitable parent or

       that she was continuing to be involved in the two problematic issues cited

       above, the Magistrate would have had no qualms about placing Marcus with

       the third party petitioner at this time.

              The Magistrate further finds that this ligation has placed Marcus

       squarely in the middle. This has been particularly difficult for him as he

       cares a lot for both of the parties who are seeking custody of him.

       {¶20} We find, based upon the established facts, no abuse of discretion in the trial

court’s adoption of the Magistrate’s Decision. The trial court’s decision was not arbitrary,

unconscionable or unreasonable in view of the facts.

       {¶21} Appellant Gibson’s two assignments of error are, therefore, overruled.
Licking County, Case No. 15-CA-75                                               9


      {¶22} Accordingly, the judgment of the Licking County Court of Common Pleas,

Domestic Relations Division is affirmed.

By: Baldwin, J.

Farmer, P.J. and

Delaney, J. concur.
