[Cite as Pahl v. Haugh, 2013-Ohio-4106.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




BRENT J. PAHL,

        PLAINTIFF-APPELLANT,                           CASE NO. 5-12-26

        v.

ELIZABETH HAUGH,                                       OPINION

        DEFENDANT-APPELLEE.




                Appeal from Hancock County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 20940287

                      Judgment Reversed and Cause Remanded

                         Date of Decision: September 23, 2013




APPEARANCES:

        John C. Filkins for Appellant

        Elizabeth K. Haugh, Appellee
Case No. 5-12-26


WILLAMOWSKI, J.

       {¶1} Plaintiff-Appellant, Brent J. Pahl, (“Brent” or “Father”), appeals the

judgment of the Hancock County Court of Common Pleas, Juvenile Division,

denying his motion for reallocation of parental rights and responsibilities, in which

he claimed that it was no longer in the best interest of the child for the Defendant-

Appellee, Elizabeth K. Haugh (“Elizabeth” or “Mother”) to continue as the

residential parent of the parties’ daughter. On appeal, Brent contends that the trial

court erred in denying his motion to name him as the residential parent and when

it overruled his objections to the Magistrate’s Decision before the court reporter

had the opportunity to transcribe and file the trial transcripts. For the reasons set

forth below, the judgment is reversed and remanded.

       {¶2} Brent and Elizabeth are the parents of a young daughter, Vaeda, who

was born in September 2008. The parties were never married, although they had

been in a long-term relationship and had resided together in Brent’s home on

Center Street in Findlay, Ohio, along with Elizabeth’s daughter from a previous

relationship, Brooklyn. Brent was the named the father of Vaeda on the birth

certificate.

       {¶3} In August of 2009, Brent filed a complaint to establish parentage.

Shortly thereafter, Elizabeth moved out of Brent’s home, along with her two

daughters. On September 23, 2009, Elizabeth filed a motion for temporary orders,


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requesting that she be designated the residential parent and requesting that Brent

pay child support. Due to the animosity between the parties after their separation,

the trial court ordered both parties to adhere to mutual restraining orders. After a

hearing, the magistrate designated Elizabeth as the temporary residential parent,

granted Brent parenting time, and ordered him to pay child support. The trial

court’s Temporary Orders on this matter were filed February 9, 2010. Brent also

filed a motion to be designated the residential parent and legal custodian of Vaeda.

       {¶4} After a two-day hearing, the magistrate issued her decision on the

final orders in March of 2010. The magistrate recommended that it was in the best

interest of the parties' child for Elizabeth to be designated the residential parent

and legal custodian and for Brent to be given regular visitation time as established

in the temporary orders. Brent was also ordered to pay child support in the

amount of $290.13 per month, and provisions for visitation and insurance were

designated. Brent’s objections to the magistrate's decision were overruled and the

trial court adopted and incorporated the magistrate’s decision in its September 7,

2010 Judgment Entry.

       {¶5} Brent appealed the juvenile court’s decision. See Pahl v. Haugh, 3d

Dist. No. 5-10-27, 2011-Ohio-1302 (“Paul v. Haugh I”). In that first appeal, Brent

asserted that the trial court erred when it failed to designate him as the residential

parent. He claimed that the trial court overlooked the fact that he was Vaeda’s


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Case No. 5-12-26


primary caretaker during her first year of life and he also alleged that testimony

before the trial court demonstrated that Elizabeth had a history of depression and

alcohol abuse which made her an unsuitable choice to be named Vaeda’s

residential parent and legal custodian.    Id. at ¶ 11.   Brent also raised errors

concerning the amount of parenting time he was given and with the child support

calculations. Id. at ¶ 10.

       {¶6} Upon review, this Court found that the record contained competent,

credible evidence to support the juvenile court’s decision. Id. at ¶ 24. Our review

of the testimony and evidence in the record at that time indicated the following.

       Of particular importance to the magistrate was consideration of
       the parent more likely to honor and facilitate court-approved
       parenting time rights or visitation or companionship rights.
       Upon observing the demeanor and attitude of both parties in
       court, as well as each party’s express statements regarding the
       other’s parenting abilities, the magistrate concluded that of the
       two, Elizabeth would be more likely to honor and facilitate
       visitation rights approved by the court. Specifically, the
       magistrate noted that from “[Brent’s] affect in Court it should
       be found that he has anger issues.” * * *

       With regard to the allocation of parental rights, the testimony
       demonstrated that Brent was initially steadfast in his position
       that Elizabeth should have no contact with Vaeda and that he
       would discourage Vaeda’s relationship with Elizabeth until she
       was at least no longer an infant. However, after being further
       questioned on this issue, Brent begrudgingly conceded that he
       would permit Elizabeth to have contact with Vaeda, if he was
       ordered to by the court.

       * * * Brent made allegations that Vaeda was not safe in
       Elizabeth’s care. However, Brent admitted that he had no

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       contact with Elizabeth since she moved out of his house months
       earlier due to the parties’ use of Elizabeth’s grandmother as the
       go-between for exchanging custody of Vaeda, which also served
       to alleviate the necessity of having to interact with one another.
       Accordingly, Brent acknowledged that he had no personal
       knowledge of Vaeda’s situation under Elizabeth’s care since the
       separation—i.e. whether her new home was safe or whether
       Vaeda’s needs were adequately being met by Elizabeth. * * *

       To the contrary, Elizabeth’s testimony demonstrated that, even
       though she had no contact with Brent, she believed it would be
       in Vaeda’s best interest to have both parents involved in her life.
       Elizabeth admitted that she believed Brent is a good father to
       Vaeda, however, her primary concern with Brent as a parent
       were his “states of rage” and “anger issues.”

Id. at ¶¶ 15-19.

       {¶7} In Paul v. Haugh I, Brent criticized Elizabeth regarding what he

characterized as her “infidelities” and “belligerent” behavior, which he attributed

to her alleged chronic alcohol abuse. Id. at ¶ 16. However, Elizabeth denied

having a drinking problem and being unfaithful to Brent. Id. At that time, we

found that “the record is devoid of any credible evidence substantiating Brent’s

allegations” and we affirmed the decision of the juvenile court naming Elizabeth

as the custodial and residential parent. Id.

       {¶8} Subsequently, on May 20, 2011, Brent filed a pro se motion to change

custody, visitation, and support, alleging that Elizabeth was in the Hancock

County jail “pending trial and conviction of seven charges since the last custody




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hearing.”1 After several continuances, a three-day hearing on all pending motions

was held on December 20, 2011, January 18, 2012, and January 26, 2012.

        {¶9} At trial, Brent offered exhibits and the testimony of numerous

witnesses to demonstrate that there had been a significant change of circumstances

and that it would be in the child’s best interest for Brent to be named the

residential parent. The testimony showed that since the trial court’s last decision

in September 2010, the following had occurred: Elizabeth had voluntarily quit her

previous job (paying $14.13/hour) and now worked at Sears (for $7.40 per hour);

she had moved three or four times and was currently living with her boyfriend,

Steve Wellman; that the police had been called numerous times for incidents

involving domestic violence and intoxication; that Elizabeth had been convicted of

three OVI offenses and one count of child endangerment; that she had continued

to drive after her license had been suspended; that she had been ordered to attend

rehabilitation and had been sentenced to jail; and that she had repeatedly violated

the terms of her probation.

        {¶10} At the hearings, four police officers testified that they had responded

to calls of domestic violence, intoxication, theft, and other issues involving

Elizabeth and her boyfriend, Steven Wellman (“Wellman” or “boyfriend”). Since

the last magistrate’s decision was issued in this case, on March 24, 2010, there

1
 Brent eventually retained his prior counsel to represent him throughout the remainder of the proceedings
and this appeal. Both parties were represented by their original attorneys during the hearings in Juvenile
Court and during the proceedings below.

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Case No. 5-12-26


was evidence in the record that Elizabeth had contact with law enforcement

officers on June 27, 2010, July 31, 2010, August 1, 2010, November 25, 2010,

December 11, 2010, December 28, 2010, April 10, 2011, April 28, 2011, July 28,

2011, August 22, 2011, and September 22, 2011. The four officers provided

testimony concerning the many of the incidents, including the following.

       {¶11} Officer Shane Leeth testified that on July 31, 2010, Wellman told

him that Elizabeth had taken his vehicle without permission, and that she was

intoxicated. Tr. 19-23. The police report indicated Elizabeth was currently under

an Administrative License Suspension (“ALS”). Pl. Ex. A. Elizabeth told the

officer that Wellman had struck her in the back while the two of them were in a

vehicle. Id.

       {¶12} Officer Marsha Hill testified that on November 25, 2010, Elizabeth’s

mother called law enforcement because she was worried about Elizabeth’s safety

as a result of concerns over alleged suicide threats. Tr. 89. The officer took

Elizabeth to Blanchard Valley Hospital for prescreening to check her mental state.

Tr. 95-97.

       {¶13} Deputy Shane Heckman testified that on April 28, 2011, Wellman

called the police because Elizabeth had arrived at his house at 7:45 a.m., extremely

intoxicated and refused to leave his home (they weren’t living together at that




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time).2 Pl. Ex. B. Wellman reported that when he attempted to speak with her,

she became irate and started screaming at him and attempted to punch and kick

him. Id. The officer observed Elizabeth screaming at Wellman and his friend, and

observed that Elizabeth was intoxicated and very irate and “appeared to have a

hard time standing up and fell back to the couch several times.” Id. Elizabeth

reported that Wellman grabbed her by the hair and ripped her off the couch. The

officer also observed that Elizabeth’s face was swollen, which she said was from a

prior incident with Wellman. Id. Elizabeth denied she had been drinking even

though she “was very belligerent throughout the conversation speaking in a loud

slurred speech.” Id. The police officer’s report further indicated that, at the time

of this incident, Elizabeth was on house arrest at her own residence, and that she

was under orders to not consume alcoholic beverages. Id.

         {¶14} Deputy Barry Turner testified that on August 22, 2011, police

responded to a 9-1-1 hang-up at Wellman’s residence. Elizabeth stated that she

had moved into his residence about two months ago, and over the past month the

two had been having verbal arguments. She reported that she was trying to finish

painting a bedroom upstairs for her children because “she has to go to jail for sixty

days soon from a past incident and her children will be staying with [Wellman].”

Pl. Ex. D. Elizabeth said that nothing “physical” happened between the two of

2
  When the officer asked Wellman if they were boyfriend/girlfriend, the officer’s report stated that “Steve
said no, they ‘just fuck sometimes.’ * * * Steve said he is not Elizabeth’s boyfriend because he thinks she is
crazy. Steve said he has been ‘fucking’ Elizabeth since October of last year.” (Pl. Ex. B)

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Case No. 5-12-26


them, “just the normal pushing that always happens between the two of them.” Id.

When the police officer inquired whether she was sure she wanted to stay with

Wellman, “she stated that she has to because she will be going to jail soon and her

children need to stay there.” Id. When the officer inquired whether she had

family that could take care of her children while she was away, “she stated that she

did not.” Id.

       {¶15} Upon cross examination, Elizabeth’s attorney did establish that

Vaeda was not present at the time that the police were called for most of the above

incidents, except for one time. That incident occurred on August 1, 2010, when

Elizabeth called the police as a result of her claim that Wellman was threatening to

“beat her ass.” Tr. 84, Pl. Ex. F. When police arrived, Wellman was intoxicated

and he represented that Elizabeth had assaulted him. Ex. F. When the officer

spoke with “an intoxicated Elizabeth,” she stated that Wellman showed up at her

residence and was screaming in her windows. “She advised [that] he woke and

scared both of her children.” Id.

       {¶16} Brent testified that he was 41 years old, he had lived in his home at

508 Center Street for twenty years, and that he provided a good environment for

Vaeda. Tr. 319. Brent’s home is next door to Donna Krugh, who is Elizabeth’s

grandmother     and   Vaeda’s   great-grandmother    (“the   Grandmother”).     The

Grandmother provides considerable baby-sitting services for Elizabeth, and


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watches Vaeda when Elizabeth is working. Visitation exchanges for Vaeda also

take place at the Grandmother’s home, and whatever communication that takes

place between the parties occurs via the Grandmother, as Brent and Elizabeth do

not speak to each other directly.     Brent testified that he does have regular

interaction with the Grandmother and discusses what Vaeda has done during the

day, what she’s eaten, what she’s played with, how she’s feeling, etc. Tr. 345-46.

       {¶17} Brent acknowledged that he does not communicate with Elizabeth,

but claims that he has concerns about speaking with her or being in her presence

because he claims that she filed a false police report against him during the

previous custody proceedings and obtained a CPO, and feared she might do so

again. Tr. 347-48. He claims she lied and told police that he broke into her home

and beat her, although charges were never filed and the CPO was dismissed. Tr.

348. Brent also testified that Elizabeth stole his dog twice, and tried to cover up

starving his dog.   Tr. 354, 359.    Elizabeth was convicted of petty theft and

obstruction of justice in relation to the incident with the dog. Tr. 359-61. He

testified that he felt it was best to limit his contact with her because he did not

know what she would do in the future, and he was afraid of being “set up.” Tr.

364.   However, he testified that he wouldn’t have a problem communicating

directly with Elizabeth concerning matters relating to Vaeda’s welfare in the

future “after Vaeda’s placed in my home safely.” Tr. 390-94.


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       {¶18} Brent further testified he had concerns about Vaeda’s safety when

she is with Elizabeth “because she gets intoxicated to a level in which she does not

know what she is doing.” Tr. 372. He has seen her drive with the children in the

car when she should not have been driving because of the license suspensions.

Brent worries about Vaeda being in a car with Elizabeth and fears that she will

“get my kid killed and not even know she did it.” Tr. 371.

       {¶19} Brent stated that he has seldom missed a visitation with Vaeda,

except when he was called to work. However, his employment and work schedule

had changed since the previous visitation orders were established. He testified

that his mother would be available to watch Vaeda when he worked, if he were to

have custody. Besides his mother, he also has his father and stepmother, sister,

stepbrother and lots of friends in the area, and they all have good relationships

with Vaeda and help him out when needed.

       {¶20} On cross examination, Brent admitted that if he were granted custody

of Vaeda, he would prefer that the court would order visitation that would be “as

limited as possible,” i.e., “supervised.” Tr. 400-402. However, he denied that he

himself would limit Vaeda’s time with Elizabeth, and claimed that he would be

better able to facilitate a relation between Vaeda and Elizabeth if he had custody.

Tr. 381.




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       {¶21} Brent testified that he loves Vaeda and would be the better parent

because there was not a safety issue with Vaeda being in his home. Tr. 381.

“She’s my friend. She’s my child. I mean, it’s that easy. We play. We run

around the table. She rides a big wheel in the basement. * * * I’d love to be able

to get her in gymnastics. I’ve got a lot of plans for her.” Id.

       {¶22} Brent also testified that he had a good relationship with Vaeda’s half-

sister Brooklyn, as she had lived in his home for six years and he would continue

to foster that relationship with Vaeda and Brooklyn. Tr. 379. He testified that

Brooklyn is often at the Grandmother’s home and he asks her all the time if she

can come over; that she was included in going to the swimming pool every

weekend during the summer; that he gives Brooklyn birthday and Christmas

presents; and that he would make sure that the girls had plenty of time to visit and

see each other if he was awarded custody. Tr. 380.

       {¶23} When Elizabeth testified, she acknowledged that she had been

arrested three times for OVI and that she had a problem with alcohol addiction.

Tr. 257, 529. She confirmed that she pled guilty to child endangerment for driving

while intoxicated with the children in the car. Tr. 257. However, she testified that

she had attended rehab at St. Rita’s, she attended counseling and AA as part of her

probation conditions, and that she had not had a drink since April 28, 2011. (Jan.

26, 2012, Tr. 529.


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       {¶24} Elizabeth also acknowledged the incidents in the police reports,

including the most recent on September 22, 2011, when she called law

enforcement because Wellman was drunk again, and advised them that he was

mad, screaming, throwing things and had her on the floor by the throat again, and

that she had to crawl out of the living room window in order to get away. Tr. 265.

She also advised the police that Wellman had a stolen handgun located at the

residence. Id. Elizabeth still testified that she believed it was in the best interest

of the children that they reside with her at Wellman’s residence “as long as he’s

sober.” Tr. 270. However, when questioned as to whether “there had been time

periods in your relationship with Mr. Wellman where you felt that he was sober,”

Elizabeth’s reply was, “Not really.” Id.

       {¶25} She also admitted that she had not told Brent that she was in jail and

rehab, nor did she offer him the opportunity to take care of Vaeda during that time.

She acknowledged that she still had sixty-days of jail time to serve in Marion, but

she believed that she might be able to serve this time at home with an ankle

monitor. Tr. 533. She testified that she would be opposed to Vaeda residing

primarily with her father if she did have to serve her time in the Marion jail. Tr.

279. Elizabeth claimed that Brent called her names in front of Vaeda and she was

afraid he would say bad things about her, although this was denied by Brent. Tr.

510, 534, 592.


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       {¶26} Elizabeth testified that she was a good mother, and she showed

pictures of Vaeda’s and Brooklyn’s decorated room in Wellman’s home, and

discussed how she often does learning and other play activities with Vaeda. She

testified, “That little girl is my life. We do everything together.”

       {¶27} Elizabeth testified that, although she has concerns about Brent’s

parenting, she does take steps to facilitate Brent’s relationship with Vaeda. Tr.

539.   She described how she took Vaeda shopping so that she could buy a

Christmas present for her father. Tr. 540. She further testified:

       I do all kinds of things. She talks about her dad all the time. All
       the time. Everything is my daddy this, my daddy that. I don’t
       say things about him. I encourage her to continue with her dad.
       I think they need to have a strong, healthy relationship.

Tr. 539.

       {¶28} Steve Wellman testified that he met Elizabeth in 2010, and that she

and her two children had lived with him since the latter part of 2011, right after

she was released from jail and rehabilitation. Tr. 191-192. When questioned

about the numerous police calls, many of which were made by Wellman, he had

difficulty remembering.     He did acknowledge that he had charges “pending”

against him from a September 22, 2011, incident in which it was alleged he had a

Python 357 Magnum in the home, but that the matter was “being disputed at this

point” and was “not resolved.” Tr. 206-207. Wellman acknowledged that he was

an alcoholic, and that he had consumed alcohol within the past 12 months. Tr.

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209. However, he testified that he was not currently drinking, although he was not

in any program or counseling for his alcoholism.        Tr. 230.    He claims that

Elizabeth had given him an ultimatum of no more drinking. Tr. 236.

       {¶29} Wellman also stated that he had not observed Elizabeth consume

alcohol in the past 12 months. Dec. 20, 2011, Tr. 209. He explains the police

reports he made that she was intoxicated were the result of him being a “jerk” and

being “vindictive” and “trying to get her into trouble.” Id. He claimed that he lied

to law enforcement about her intoxication in order to get her into trouble. Id. at

210.

       {¶30} Wellman denied that he was aware that she still had to serve 60 days

in jail or that she wanted him to watch the children for her during this time. Tr.

215. He testified that Elizabeth was a good mother, that she spent time playing

with and teaching her daughters, and that the daughters seemed to be happy and to

be doing well.

       {¶31} The magistrate’s decision was filed on March 2, 2012.              The

magistrate found that there had been a change of circumstances that had a material

effect upon the child, but recommended that it was not in the child’s best interests

to grant Brent’s motion and name him as the custodial parent.

       The Court should find that it is not in the best interests of the
       child to grant [Brent’s] request to grant him custody of Vaeda.
       [Elizabeth’s] bad parenting is intermittent while [Brent’s] bad
       parenting is consistent and ongoing. Furthermore, [Elizabeth]

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Case No. 5-12-26


        will continue to allow a relationship to exist between [Brent] and
        Vaeda. [Brent’s] conduct throughout this case and while in the
        courtroom indicate that he will continue to allow his hatred for
        [Elizabeth] to impede Vaeda’s relationship with her mother. To
        grant [Brent’s] request would be to essentially terminate
        Vaeda’s relationship with her mother.            Accordingly, the
        Magistrate cannot find that it would be in the child’s best
        interests to grant [Brent’s] request for custody.

Mag. Dec., 13. The magistrate also recommended denying Brent’s motions to

change visitation and modify child support.

        {¶32} Brent filed timely preliminary objections, and on April 11, 2012, the

trial court granted his leave for permission for an extension of time to file

supplemental objections after the transcript of proceedings had been filed.

However, Brent did not timely request an extension of time in which to file the

transcript and the trial court dismissed his objections on April 17, 2012, after

Elizabeth had filed a motion to dismiss the objections on April 16. The trial court

denied his motion for reconsideration and it denied his June 29, 2012 “Motion to

Set Aside the Judgment.”3 Although Brent later filed the transcripts on June 15,

the trial court did not consider them, nor did it rule on his supplemental objections

which were filed 14 days after the transcripts pursuant to the trial court’s April 11

amended order. (See further detailed discussion of this matter in relation to the

second assignment of error, below.)



3
  Brent’s motion was captioned “Motion to Set Aside the Judgment,” even though he was referring to an
interlocutory order.

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       {¶33} On August 6, 2012, the trial court issued a one-page judgment entry

and orders stating that it approved, adopted and incorporated the findings of fact

and conclusions of law contained in the magistrate’s decision in full, and ordered

and decreed that Brent’s request for custody was denied, along with his motion to

change visitation and child support.

       {¶34} It is from this decision that Brent raises this appeal. Elizabeth, who

is now pro se, did not file an appellee’s brief. Pursuant to App.R. 18(C), “[i]f an

appellee fails to file the appellee’s brief, * * * the appellee will not be heard at

oral argument except by permission of the court * * * and in determining the

appeal, the court may accept the appellant’s statement of the facts and issues as

correct and reverse the judgment if appellant’s brief reasonably appears to sustain

such action.”

       {¶35} Brent presents the following two assignments of error for our review.

                            First Assignment of Error

       The trial court erred as a result of its failure to identify [the
       Father] as the residential parent.

                          Second Assignment of Error

       The trial court erred as a result of its refusal to consider [the
       Father’s] objections to the Magistrate’s Decision after [the
       Father] paid for and filed the transcript of proceedings.

       {¶36} In order to facilitate our review and discussion, we elect to address

the assignments of error in reverse order.

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                                    Second Assignment of Error

         {¶37} In the second assignment of error, Brent maintains that the trial court

erred when it summarily dismissed his preliminary objections without actually

ruling on them. He argues that the trial court erred when it did not allow him a

reasonable opportunity to obtain the transcripts, or to respond to Elizabeth’s

motion to dismiss. He contends that the trial court abused its discretion when it

denied him an extension of time in order to have the transcripts prepared and to

reconsider its decision to dismiss his objections when it denied his “Motion to Set

Aside Judgment.”

         {¶38} The magistrate filed her decision on March 2, 2012. Twelve days

later, on March 14th, Brent’s attorney timely filed Preliminary Objections to the

Magistrate’s Decision,4 along with a Motion for Extension of Time to File

Supplemental Objections, stating that he needed time to obtain the transcript of

proceedings for the three days of hearings, and that these transcripts were

necessary in order to present his objections. On April 11, 2012, the trial court

granted the motion.5


4
  The Preliminary Objections merely stated that (1) the Magistrate’s Decision was against the weight of the
evidence; (2) the Magistrate failed to properly apply to the law to the facts as established; (3) the
Magistrate erred as a result of not designating Brent as the residential parent; and (4) the Magistrate erred
in ordering Brent to pay child support.
5
  This was actually an “Amended” Judgment Entry. The first judgment entry, signed and filed by the trial
court on March 19, 2012, stated that “Plaintiff’s Attorney shall have a period of fourteen (14) days in which
to file his supplemental objections * * *.” The Amended J.E. stated that “Plaintiff’s Attorney shall have a
period of fourteen (14) days after the filing of the transcripts in which to file his supplemental objections *
* *.” (Emphasis added.)

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       {¶39} Six days later, on April 17, 2012, the trial court filed a judgment

entry dismissing Brent’s objections due to his failure to file a transcript within the

“40 day period” as required by Juv.R. 40 and the local Hancock County Juvenile

Court Rule 28(D)(2).     Apr. 17, 2012 J.E. This judgment entry was filed in

response to Elizabeth’s “Motion to Dismiss” filed the on the previous day.

Elizabeth’s motion claimed that Brent’s objections were not timely prepared and

that the transcript was not timely prepared and he had missed the extension

deadline. In her Motion to Dismiss, Elizabeth’s attorney represented that the court

reporter had “returned the disk to the court because she was not paid.” Apr. 16,

2012 Mtn. to Dismiss Objections. The trial court immediately granted Elizabeth’s

motion, without allowing Brent an opportunity to respond. The trial court stated

that “[t]he Plaintiff, although granted an extension to file objections, has never

requested nor been granted a request to extend the time to file a transcript. The

time requirement has run and no transcript has been filed in this case.” Apr. 17,

2012 J.E.

       {¶40} On April 26, 2012, Brent’s attorney filed a Motion for Extension of

Time to Complete Transcription and for Reconsideration of the April 17, 2012,

Judgment Entry Dismissing his objections. In his motion, Brent’s attorney stated

that Elizabeth’s motion “was not accurate in its depiction of the circumstances

surrounding the preparation of the transcript,” that Brent wished to pursue his


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objections, and that his request for an additional 40 days in which to complete the

transcription would not prejudice the Defendant. Attached to, and incorporated

into the motion was the affidavit of the court reporter stating that she had been

contacted by Brent’s counsel on March 12th, and she provided him an estimate on

March 14th. She did return the CDs to the court after giving her estimate, but that

was her usual practice. On April 4th Brent’s counsel contacted her and indicated

that the deposit for the transcription would be delivered on April 6, which it was.

On April 11, she received the court order indicating that Brent’s attorney had 14

days “after” the filing of the transcript to file objections, and was told that she was

to proceed with the transcript as earlier discussed.6 Her affidavit stated that she

needed additional time to prepare the transcript due to the length of the hearings

and a pending permanent custody appeal transcript that she was preparing. Apr.

27, 2012, Plaintiff’s Mtn.

         {¶41} On May 4, 2012, the trial court denied the motion for extension of

time and for reconsideration. The trial court stated that:

         [Brent], although granted an extension to file objections, has
         never been granted a request to extend the time to file a
         transcript. Up until the point of the filing of his motion on April
         27, 2012, Plaintiff never requested an extension of the transcript
         filing deadline. The time requirement has run and no transcript
         has been filed in this case.


6
  The court reporter’s affidavit also stated that when she received the original March 19th order, she called
the attorney’s office and indicated that she could not have the transcript completed “in 14 days” due to the
length of the hearings and a pending permanent custody appeal transcript that she was preparing.

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May 4, 2012 J.E.

       {¶42} On June 15, 2012, the three-volumes of transcripts were filed for the

record.   On June 29, 2012, Brent filed his detailed supplemental objections,

pursuant to the Court’s prior order granting him 14 days from the filing of the

transcripts. Brent simultaneously filed a motion asking the trial court to set aside

the judgment of May 4, 2012; to approve the filing of the transcripts; and, to rule

upon the supplemental objections. Brent stated that his motion to set aside the

May 4, 2012 Judgment Entry “was predicated upon Civ.R. 60(B),” whereupon a

court “may relieve a party or his legal representative from a final judgment, order

or proceeding for the following reasons: (1) mistake, inadvertence, surprise or

excusable neglect; * * *.” He stated that the trial court’s dismissal was based upon

an inaccurate depiction of the circumstances surrounding the preparation of the

transcript presented by Elizabeth’s counsel, and that the court reporter’s affidavit

clearly established that he was proceeding with the transcription of the hearing in

order to file his supplemental objections as to why the trial court erred in naming

Elizabeth as the residential and custodial parent.

       {¶43} On July 19, 2012, the trial court denied Brent’s motion to set aside

the judgment denying an extension of time. In its decision, the trial court noted

that the time periods for the filing of a transcript under Civ.R. 53(D)(3)(b)(iii) and

Hancock County Juvenile Rules 28(D)(1)(2) “are at odds with each other as to


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how long one has to file a transcript of the hearings upon which objections are

based,” and acknowledged that the April 17, 2012, dismissal “may or may not

have been premature” under the Local Juvenile Rules. However, in any case, it

found that Brent’s motion for extension of time to file the transcript was still

outside of the time limits of the “more lenient” Local Juvenile Rules (by three

days). Further, the court stated that, even if its original decision was premature, it

reconsidered and ratified it on May 4, 2012. Jul. 19, 2012 J.E.

       {¶44} Thereafter, on August 6, 2012, the trial court filed a one-page

Judgment Entry and Orders, incorporating its previous judgments and entries;

approving and incorporating the findings of fact and conclusions of law as

contained in the Magistrate’s Decision; and denying Brent’s motion for a change

of custody and a modification of visitation and child support.

       {¶45} A trial court will typically be allotted great discretion in the

management of the cases on its docket. See, e.g., In re Disqualification of Sutula,

105 Ohio St.3d 1237, 2004-Ohio-7351 ¶ 4. Likewise, it is within a trial court’s

discretion to decide whether or not it will reconsider a ruling or grant a motion for

relief from judgment or order. See Howard v. Catholic Soc. Serv. of Cuyahoga

Cty., Inc., 70 Ohio St.3d 141 (1994). A reviewing court will not reverse such

rulings unless the trial court has abused its discretion. See, e.g., Shaffer v. Lyme,

3d Dist. Shelby No. 17-10-23, 2011-Ohio-2204, ¶ 24.              The term “abuse of


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discretion” implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶46} Based upon our review of the record, we find there are specific

circumstances in this case that when viewed together suggest that the trial court’s

decision denying reconsideration of its prior decision and refusing to review the

transcripts and Brent’s supplemental objections was an abuse of discretion.

       {¶47} First, the record indicates that between the filing of the March 19,

2012 Judgment Entry and the April 11, 2012 Amended Judgment Entry, additional

information regarding the delay in the preparation of the transcript was brought to

the trial court’s attention, which prompted the trial court to amend its prior entry.

As previously discussed, these entries granted Brent’s counsel additional time to

file supplemental objections. The record demonstrates that the March 19, 2012

Judgment Entry, which stated that “Plaintiff’s Attorney shall have a period of

fourteen (14) days in which to file his supplemental objections” was modified by

the subsequent April 11, 2012 Judgment Entry to state “Plaintiff’s Attorney shall

have a period of fourteen (14) days after the filing of the transcripts in which to

file his supplemental objections.” (Emphasis added).

       {¶48} Second, in the affidavit filed by Brent’s counsel on April 26, 2012,

the court reporter specifically stated that on April 5, 2012, after confirmation from

Brent’s counsel that the deposit was forthcoming, she reviewed the March 19,


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2012 Judgment Entry and notified Brent’s counsel that she would be unable to

complete the transcript in the 14 day timeframe mentioned in the judgment entry.

The court reporter further stated that six days later, on April 11, 2012, she received

the Amended Judgment Entry, which granted a new extension of time for

supplemental objections—the timeframe for which set forth no date but was based

solely upon the filing of the transcript. Thus, the court reporter’s affidavit is

consistent with the scenario that additional information was given to the trial court

regarding the delay in the preparation of the transcript.

       {¶49} Both of these facts suggest that it was reasonable for Brent’s counsel

to believe that he adequately apprised the trial court of the delay in the transcript

preparation and, therefore, it was also reasonable for Brent’s counsel to rely on the

amended judgment entry of April 11, 2012 as implicitly granting him additional

time to file the transcript with the court as well as granting him an extension to file

his supplemental objections.

       {¶50} Third, as acknowledged by the trial court, Juv.R. 40(D) and Hancock

County Juvenile Rules 28(D) each set forth a different time requirement for filing

the transcript supporting objections. The transcript in this case was due 30 days

after Brent filed objections, or on April 13th, according to the Juvenile Rules (as

well as Civ.R. 53). However, The Hancock County Rules of Juvenile Court

(“Local Juvenile Rules”) allow a party forty days, so the transcript was not due


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until April 23rd under the Local Juvenile Rules.         Jul. 19, 2012 J.E.     When

Elizabeth’s attorney filed her motion to dismiss on April 16, and the trial court

dismissed the objections on April 17, Brent still had seven and eight days,

respectively, in which to timely file the transcripts or to request an extension of

time. Therefore, under the Court’s own Local Juvenile Rules, the dismissal at that

time was in error and premature.

       {¶51} Fourth, despite dismissing Brent’s objections on April 17, 2012, and

overruling his motion for extension of time to complete transcription on May 4,

2012, the record indicates that the trial court did not enter a final order stating it

had conducted its independent review of the matter until August 6, 2012. At this

point, the transcripts had been filed in the record for almost two months and

Brent’s supplemental objections had been filed with the court for nearly six weeks.

Thus, the trial court had the transcripts at its disposal and neither party would have

been prejudiced by the trial court reviewing the transcripts prior to issuing its final

order incorporating its previous judgments and entries, and approving and

incorporating the findings of fact and conclusions of law as contained in the

magistrate’s decision. Nor does it appear that any delay caused by the extensions

of time sought for either the supplemental objections or the transcript in this case

had any prejudicial impact upon the overall time it took the trial court to render its

final decision.


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       {¶52} In sum, due to the lack of clarity regarding the scope of the trial

court’s order granting Brent’s counsel additional time to file supplemental

objections based upon the delay in preparing the transcripts, the trial court

granting Elizabeth’s motion to dismiss Brent’s objections prior to the expiration of

the 40 day timeframe to file the transcript specified in the local rule, and the trial

court’s delay in entering a final order on this case until months after the transcripts

were filed, all taken together lead us to conclude that the trial court’s judgments of

April 17, 2012, May 4, 2012, July 19, 2012, and August 6, 2012 amounted to an

abuse of discretion. Accordingly, the second assignment of error is sustained.

                             First Assignment of Error

       {¶53} Brent claims that the trial court erred when it failed to name him as

the residential parent. He asserts that the testimony and evidence established that

having Elizabeth as the residential parent subjects his daughter to an environment

that is unstable, unsafe, and full of domestic strife, and that there was no evidence

to support the magistrate’s findings that it would not be in Vaeda’s best interest if

he was named the residential parent.

       {¶54} Because this case is being remanded on procedural grounds, the trial

court will need to review the matter and rule on Brent’s objections before it

decides whether to adopt or reject the magistrate’s decision in whole or in part,

with or without modification, or take other such action as set forth in Juv.R.


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40(D)(4)(b). Therefore, Brent’s first assignment of error is not ripe for review at

this time until a proper judgment is entered and is therefore rendered moot.

       {¶55} Notwithstanding this fact, due to the passing of so much time since

the hearings, we would encourage the trial court take advantage of Juv.R.

40(D)(4)(d) allowing that “the court may hear additional evidence * * *,” in order

to resolve some of the issues in the magistrate’s decision.         See also Juv.R.

40(D)(4)(b). Perhaps this would allow for the opportunity for evidence to be

heard from an impartial advocate representing Vaeda’s best interest—i.e., through

the court utilizing the services of an independent guardian ad litem. Notably,

Vaeda was only three-and-a-half years old at the time of the hearings and unable

to express her perspective to the court.

       {¶56} The appointment of a guardian ad litem may also prove to be

especially beneficial under these circumstances given that, except for the

testimony of the police officers, all of the evidence before the trial court consisted

of the testimony of the parties and their relatives/boyfriend/supporters.       As a

result, it appears that the magistrate was forced to rely upon a significant amount

of speculation and assumption as to whether or not Elizabeth and Wellman would

remain sober and obey the law in the future; whether or not the domestic violence

and Brent’s animosity would affect Vaeda; and whether or not Brent would allow




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Vaeda to have visitation and foster a relationship with her mother to form the basis

of her decision.

       {¶57} Accordingly, having found error prejudicial to the Appellant herein

in the particulars assigned and argued in the second assignment of error, we

reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

ROGERS and SHAW, J.J., concur.

/jlr




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