[Cite as Morrison v. Morrison, 2014-Ohio-2254.]


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

BRANDY M. MORRISON                                    C.A. No.    27150

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CHAD J. MORRISON, SR.                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellee                                      CASE No.   2011-11-3413

                                DECISION AND JOURNAL ENTRY

Dated: May 28, 2014



        WHITMORE, Judge.

        {¶1}    Brandy M. Morrison (“Wife”) appeals from the judgment of the Summit County

Court of Common Pleas, Domestic Relations Division. This Court affirms in part and reverses in

part.

                                                  I

        {¶2}    Wife and Chad J. Morrison, Sr. (“Husband”) were married on August 15, 1998.

Three children were born to the couple. In November 2011, Wife filed a complaint for divorce

with children. Husband answered the complaint. The magistrate issued temporary orders on

January 18, 2012. The temporary orders provide, inter alia, that Husband would pay the

mortgages on the marital residence, that both parties would be temporary residential parents and

legal custodians of the children, and that Husband would pay temporary child support to Wife.

The magistrate found that “[t]emporary spousal support [was] not appropriate under the existing

circumstances.”
                                               2


       {¶3}    After Husband ceased paying the mortgages, Wife filed a motion for Husband to

show cause why he should not be held in contempt for failing to pay the mortgages. That same

day, Wife moved to modify the temporary orders to provide spousal support alleging “the parties

agreed that no spousal support would issue in lieu of an order directing [Husband] to pay the

monthly mortgage on the marital residence.” Both parties also moved the court to modify their

parental rights and responsibilities.

       {¶4}    The magistrate held a hearing and modified the temporary orders.     The parties

agreed the issue of whether Husband was in contempt for non-payment of the mortgages would

pass through to the final hearing. The magistrate noted: “Since [t]emporary [o]rders were issued

Husband has entered in to a Chapter 7 Bankruptcy. Hence, the [c]ourt can modify the support as

no stay on these issues, but cannot order the payment of debts.” The magistrate ordered the

Husband to pay Wife temporary spousal support of $500 per month.

       {¶5}    A trial was held before the chief magistrate on December 5, 2012. On March 19,

2013, the chief magistrate issued a lengthy decision. That same day, the trial court issued a

judgment entry divorce decree adopting the magistrate’s decision. Thereafter, Wife requested

findings of fact and conclusions of law. Wife’s request was denied in an entry signed by both

the chief magistrate and the trial court judge, which stated simply, “Findings of fact and

conclusions of law [are] already contained in the Decree of Divorce filed March 19, 2013.

Plaintiff’s request is denied.”

       {¶6}    Wife subsequently filed objections to the magistrate’s decision.     First, Wife

objected to the designation of Husband as residential parent. Wife argued that the magistrate

failed to apply the factors listed in R.C. 3109.04(F). Citing R.C. 3109.04(C), Wife also argued

that the court had failed to make any specific findings regarding why, despite Husband’s
                                                 3


conviction for domestic violence against Wife, it was in the best interest of the children for him

to be the residential parent and legal custodian. Next, Wife objected to the parenting time

schedule. Wife further objected to the order that she pay child support1 commencing on the trial

date rather than the decision date. Finally, Wife objected to the finding that Husband was not in

contempt for failing to pay the mortgages. Wife requested an oral hearing on her objections.

       {¶7}    The trial court overruled Wife’s request for an oral hearing. The court found,

“[a]fter reviewing the docket, transcript and all the evidence submitted at the final hearing, * * *

the record supports the [m]agistrate’s findings and ultimate decision. Furthermore, * * * the

finding that Mr. Morrison is not in contempt for non-payment of the mortgage is supported by

the record.” Wife now appeals and raises five assignments of error for our review. To facilitate

the analysis, we rearrange and consolidate some assignments of error.

                                                 II

                               Assignment of Error Number Three

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
       INCLUDING SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF
       LAW AS REQUIRED. THE TRIAL COURT CREATED A MANIFEST
       MISCARRIAGE OF JUSTICE.

       {¶8}    In her third assignment of error, Wife argues that the trial court failed to make

specific findings of fact as required by R.C. 3109.04(C). We agree.

       {¶9}    R.C. 3109.04(C) provides, in relevant part:

       If the court determines that either parent has been convicted of or pleaded guilty
       to a violation of section 2919.25 of the Revised Code * * *, it may designate that
       parent as the residential parent and may issue a shared parenting decree or order
       only if it determines that it is in the best interest of the child to name that parent
       the residential parent or to issue a shared parenting decree or order and it makes
       specific written findings of fact to support its determination.

1
 Wife also objected to the tax years that each party would claim the children on their tax returns,
but neither party has appealed that issue to this Court.
                                                4



(Emphasis added.) This Court has previously found that the failure to make such findings is

reversible error. Smith v. Smith, 9th Dist. Wayne No. 00CA0063, 2001 WL 542317, *2 (May 23,

2001). In Smith, the magistrate made extensive factual findings, but “the trial court itself never

mentioned the domestic violence conviction in its judgment.” Id. at fn. 1.

       {¶10} Wife alleges, and Husband does not dispute, that Husband was convicted of

domestic violence in violation of R.C. 2919.25. The magistrate found: “Husband testified on

cross examination that he was convicted of domestic violence in 2006, and that the victim was

Wife. Husband testified that he was convicted in Barberton Municipal Court.” This is the sole

reference in the magistrate’s decision to the domestic violence conviction. There is no reference

to the domestic violence conviction in the trial court’s entry adopting the magistrate’s decision.

Likewise, there is no reference to the domestic violence conviction in the trial court’s entry

overruling Wife’s objections to the magistrate’s decision. Neither the magistrate nor the trial

court address the circumstances of the domestic violence conviction2.

       {¶11} In overruling Wife’s objections, the trial court noted that Wife had objected to a

number of items including that “the [c]ourt did not apply the factors based upon the requirements

of section 3109.04(F).” The trial court did not acknowledge that Wife also objected to the lack

of findings required by R.C. 3109.04(C). Pursuant to R.C. 3109.04(C), the trial court was

required to determine whether it was in the best interest of the children to name Husband the

residential parent and to make specific written findings of fact to support its determination. See

Smith, 2001 WL 542317, at *2.



2
  At oral argument, counsel for Husband stated that the facts surrounding the domestic violence
conviction were never addressed and even he did not know the facts and circumstances because
the conviction was not in dispute.
                                                 5


       {¶12} Wife’s third assignment of error has merit and is sustained.

                                Assignment of Error Number One

       THE TRIAL COURT ERRED, AND ABUSED ITS DISCRETION IN ITS
       ALLOCATION OF PARENTAL RIGHTS. THE TRIAL COURTS (sic)
       CUSTODY DECISION AND FACTUAL FINDINGS ARE AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       ISSUED ITS VISITATION SCHEDULE FOR WEEKLY COMPANIONSHIP
       TIME AND DAYS OF SPECIAL MEANING. THE TRIAL COURTS (sic)
       DECISION AND FACTUAL FINDINGS ARE NOT SUPPORTED BY
       EVIDENCE OR IN THE CHILDREN’S BEST INTEREST.

       {¶13} In Wife’s first and second assignment of error, she argues, respectively, that the

trial court erred in designating Husband the residential parent and in setting her visitation

schedule. Given the disposition of assignment of error number three, we are unable to address

these assignments of error at this time.

       {¶14} The trial court’s findings under R.C. 3109.04(C) are necessary before this Court

can review the residential parent designation. See Smith at *2. Similarly, this Court is unable to

review the visitation schedule until the residential parent designation is determined by the trial

court. R.C. 3109.051(A) provides:

       If a divorce * * * involves a child and if the court has not issued a shared
       parenting decree, the court * * * shall make a just and reasonable order or decree
       permitting each parent who is not the residential parent to have parenting time
       with the child * * *, unless the court determines that it would not be in the best
       interest of the child to permit that parent to have parenting time with the child and
       includes in its journal its findings of fact and conclusions of law.

(Emphasis added.) By its plain language, parenting time for the nonresidential parent first

requires a determination of who is the appropriate residential parent.
                                                  6


       {¶15} Accordingly, we are unable to review Wife’s assignments of error number one or

two until the trial court addresses these issues in light of assignment of error number three.

                                Assignment of Error Number Four

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING
       TO HOLD APPELLEE IN CONTEMPT OF COURT AND/OR NOT ISSUING
       ORDERS FOR REPAYMENT.

       {¶16} Wife argues that the trial court erred in failing to hold Husband in contempt for

non-payment of the mortgages. Wife notes that Husband was ordered to pay the mortgages in

the temporary orders dated January 18, 2012. Wife alleges that the temporary orders included

mortgage payments in lieu of spousal support. On May 30, 2012, Wife filed two motions – one

for contempt and the other for spousal support. Wife notes that for a four month period Husband

paid neither the mortgages nor spousal support.

       {¶17} This Court reviews contempt proceedings for an abuse of discretion. Zemla v.

Zemla, 9th Dist. Wayne No. 11CA0010, 2012-Ohio-2829, ¶ 8. An abuse of discretion “implies

that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983). “An appellant bears the burden of ensuring that the record

necessary to determine the appeal is filed with the appellate court.” Carrion v. Carrion, 9th Dist.

Lorain No. 07CA009138, 2007-Ohio-6142, ¶ 12. When there are multiple hearings but not all

the transcripts are included in the record, this Court may be unable to question a trial court’s

discretionary decisions. See Zemla v. Zemla, 9th Dist. Wayne No. 09CA0019, 2010-Ohio-3938,

¶ 19, citing Carrion at ¶ 12.

       {¶18} The magistrate held a hearing on the parties’ motions for temporary orders on

January 10, 2012. Wife alleges that the parties agreed that Husband would pay the mortgages

rather than spousal support. Wife has not supplied this Court with a transcript of the January 10,
                                                  7


2012 hearing. On August 28, 2012, the magistrate held a hearing on the parties’ pending

motions, including Wife’s motion to modify support, Wife’s motion for contempt, and

Husband’s motion to modify support. Wife has not supplied this Court with a transcript of that

hearing either.

       {¶19} In the magistrate’s order following the August 28, 2012 hearing, the magistrate

noted: “Since [t]emporary [o]rders were issued Husband has entered in to a Chapter 7

Bankruptcy. Hence, the [c]ourt can modify support as no stay on these issues, but cannot order

payment of debts.” The magistrate set temporary spousal support at $500 per month effective

May 30, 2012. The magistrate noted the issue of contempt regarding the non-payment of the

mortgages would pass through to the final hearing.

       {¶20} At the final hearing, the parties stipulated: “Husband was just granted a Chapter 7

discharge on November 28[, 2012]. So if he has any debts, they are being paid to the bankruptcy

court.” The record does not contain a list of what debts were included in the bankruptcy. The

magistrate found, “that Husband was [o]rdered to pay the mortgages on the home, but not in

exchange for no spousal support.” The magistrate concluded: “Husband shall not pay the

mortgage payments because he filed bankruptcy. Husband shall not be held in contempt.” The

trial court overruled Wife’s objection to this finding.

       {¶21} Based on the limited record before us, we cannot say the trial court abused its

discretion. Wife’s fourth assignment of error is overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       ALLOCATING APPELLANT TO PAY CHILD SUPPORT PAYMENTS AND
       CREDITS WHILE APPELLANT WAS STILL THE PRIMARY CARE GIVER.
       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       DENYING APPELLANT (sic) REQUEST FOR ORAL HEARING.
                                                8


       {¶22} Wife makes two arguments under her assignment of error number five. She

argues that the trial court abused its discretion in denying her request for an oral hearing on her

objections to the magistrate’s decision. She also argues that the trial court erred in ordering her

to pay child support as of the December 5, 2012 trial date rather than its March 19, 2013 decision

date. We address these arguments separately.

       Child Support Obligation Date

       {¶23} We apply an abuse-of-discretion standard to child support issues. Ostmann v.

Ostmann, 168 Ohio App.3d 59, 2006-Ohio-3617, ¶ 38 (9th Dist.). Orders modifying child

support obligations are generally retroactive to the date the modification was requested by one of

the parties. State ex rel. Draiss v. Draiss, 70 Ohio App.3d 418, 421 (9th Dist.1990). But when

the parties are operating under temporary support orders without a request for modification, it is

inequitable to retroactively apply an increase to the period between the trial and the final

judgment entry. Ostmann at ¶ 43-45. Rather under those circumstances, any modification of the

temporary support orders “may equitably be applied only prospectively from the date of the

decree.” Id. at ¶ 45.

       {¶24} In the present matter, temporary orders were issued on January 18, 2012

establishing child support and finding spousal support “not appropriate.” Wife filed a motion to

modify spousal support on May 30, 2012. Husband filed a motion to modify child support on

June 5, 2012. The magistrate issued an order modifying both the spousal support and the child

support on October 1, 2012. Neither party filed any motions to modify after the October 1, 2012

entry. At the time of the trial on December 5, 2012, there were no pending motions to modify.

Therefore, it was error for the trial court to retroactively modify the parties’ child support

obligations to December 5, 2012.
                                                 9


       Request for Oral Hearing

       {¶25} In her objections to the magistrate’s decision, Wife requested an oral hearing

alleging she had “additional evidence regarding her employment as it relates to parental rights

and responsibilities that became available after the trial in this matter, and thus [she] could not,

with reasonable diligence, have produced that evidence for consideration by the [m]agistrate.”

The trial court denied Wife’s request for an oral hearing without explanation.

       {¶26} The actions a trial court can take on a magistrate’s decision are outlined in Civ.R.

53(D)(4). If objections are filed, 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 [ ] 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.

Civ.R. 53(D)(4)(d). The rule “contemplates that new events may arise or be discovered between

the time of a magistrate’s decision and a trial judge’s final judgment, and the rule provides a

mechanism for the introduction of such evidence in a timely manner.” See In re A.S., 9th Dist.

Summit No. 26462, 2013-Ohio-1975, ¶ 14-15 (analyzing identical language in Juv.R.

40(D)(4)(d)).

       {¶27} A trial court generally has discretion to decide whether it will hear new evidence

following objections, but “a court does not have discretion to refuse to consider new evidence if

the objecting party demonstrates that it could not, with reasonable diligence, have presented the

evidence to the magistrate.” Welch v. Welch, 4th Dist. Athens No. 12CA12, 2012-Ohio-6297, ¶

12 (applying Civ.R.53(D)(4)(d) where spouse relocated following magistrate’s hearing). While

“[w]e are sympathetic to a burdensome caseload and the struggle to produce timely decisions,”

the passage of time between a magistrate’s hearing and decision can allow for a change in
                                                 10


circumstances that a party may properly raise through Civ.R. 53(D)(4)(d). See Noe v. Noe, 5th

Dist. Ashland No. 07-COA-047, 2008-Ohio-1700, ¶ 20-21 (during time between hearing and

decision child left day care and began elementary school). Once properly raised, “a court must

provide the objecting ‘party an opportunity to demonstrate that such newly discovered evidence

could not have been produced before the magistrate.’” Welch at ¶ 12, quoting Porter v. Ferrall,

11th Dist. Portage No. 2002-P-0109, 2003-Ohio-6685, ¶ 18.

       {¶28} We are mindful that a blanket rule requiring a hearing every time an objecting

party invokes the talismanic words of Civ.R. 53(D)(4)(d) could lead to an abuse of that rule. But

under the facts of this case, we do not believe Wife has merely invoked a set of talismanic words.

Rather, Wife noted the evidence did not become available until after trial. She identified a

factual change in circumstances regarding her employment. Finally, she detailed that the parties’

legal parental rights and responsibilities could be affected by the change. We take no position on

the merits of Wife’s allegations, but simply find a hearing was warranted under the

circumstances. See In re A.S. at ¶ 27, Welch at ¶ 17-18.

       {¶29} Wife’s fifth assignment of error is sustained.

                                                 III

       {¶30} Wife’s assignments of error number three and five are sustained. Wife’s

assignments of error number one and two are not ripe for review. Wife’s assignment of error

number four is overruled. The judgment of the Summit County Court of Common Pleas,

Domestic Relations Division, is affirmed in part and reversed in part. This matter is remanded to

the trial court for further proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.
                                                11




       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 Summit, 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 equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

BRANDY M. MORRISON, pro se, Appellant.

DON E. LOMBARDI, Attorney at Law, for Appellee.
