[Cite as Hartley v. Jones, 2013-Ohio-2381.]




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




TIFFANY N. HARTLEY, ET AL.,

        PLAINTIFFS-APPELLANTS,                           CASE NO. 5-12-35

        v.

SIDNEY T. JONES,                                         OPINION

        DEFENDANT-APPELLEE.




                Appeal from Hancock County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 21140246

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: June 10, 2013




APPEARANCES:

        John C. Filkins for Appellants

        Timothy A. McGee for Appellees
Case No. 5-12-35


WILLAMOWSKI, J.

        {¶1} Although originally placed on our accelerated calendar, we elect,

pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

        {¶2} Plaintiff-Appellant, Tiffany N. Hartley, et al., (“Tiffany” or “the

Mother”), appeals the judgment of the Hancock County Court of Common Pleas,

Juvenile Division, which established parental rights and responsibilities, a

visitation schedule, and child support obligations between the Mother and

Defendant-Appellee, Sidney T. Jones (“Sidney” or “the Father”). On appeal, the

Mother claims that the trial court erred in failing to name her as the sole residential

parent and by adopting what she claims is essentially a shared parenting plan. The

Mother also claims the trial court erred when it deviated from the child support

schedule without a finding that the deviation was in the best interest of the child.

For the reasons set forth below, the judgment is affirmed in part and reversed in

part.

        {¶3} Tiffany and Sidney are the parents of one minor child, Jaden, who was

born in May 2011. The parties were never married. In fact, the couple ended their

relationship when Tiffany was six months pregnant with Jaden. Sidney claims

that he did not know she was pregnant and he did not learn about Jaden until the

evening of his birth. (Mag. Dec. Stmt. of Facts, p. 2) Sidney also claims that

Tiffany told him and others that he was not Jaden’s father and she did not name


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him as the father on the birth certificate. (Id.) Tiffany denies that she ever told

anyone that Sidney was not the father. (Id.) Sidney maintains that the first time

he was permitted to see Jaden was at the laboratory during genetic testing in July

of 2011, although Tiffany claims that she never denied him contact. (Id.)      The

results of the genetic testing indicated that the probability of Sidney’s paternity

was 99.99% and the parties have stipulated that Sidney is Jaden’s father. (Id.)

The parties have spoken to each other very little since their relationship ended.

(Id.)

        {¶4} This case commenced on September 14, 2011, when the Hancock

County Child Support Enforcement Agency (“CSEA”) filed a complaint to

establish parentage and adopt the administrative child support order for unmarried

persons. Sidney, as obligor, was to pay $134.95 per month for child support.

        {¶5} On September 26, 2011, Sidney filed a pro se motion requesting that

shared parenting with an alternating weekly schedule be established; that his child

support payments be reduced; that Jaden Hartley’s last name be changed to his

surname, Jones; that he should be entitled to claim Jaden as a dependent on taxes

in alternating years; and, that he have access to Jaden’s medical records and other

official documents.




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       {¶6} Tiffany filed a motion requesting that she be designated the residential

parent and legal custodian. (Feb. 8, 2012 Mtn.) She also requested child support

and the right to claim the dependency exemption for Jaden every year.

       {¶7} A hearing was held on the motions on May 24, 2012 before the

magistrate.   Both parties were present, along with their retained counsel.         A

representative from CSEA also appeared and both parties stipulated to the

information provided by CSEA.

       {¶8} The magistrate’s decision was filed shortly thereafter on June 5, 2012.

The primary issues before the court involved custody, visitation, and child support.

Because this was an initial allocation of parental rights, it was not necessary to

establish a change of circumstances; the court only needed to consider the factors

affecting the best interest of the child under R.C. 3109.04(F). See Self v. Turner,

3d Dist. No. 10-06-07, 2006-Ohio-6197, ¶¶ 6-8.

       {¶9} The magistrate’s decision outlined the relevant statutory factors

pertaining to the best interest of the child in detail as they applied to the facts in

this case. The magistrate found that, with the exception of one factor, the parties

were “equal in this case.” (Mag. Dec. p. 6) The magistrate made the following

recommendations that are pertinent to the issues in this appeal:

       (c) The Court should find that it is in the best interests of the child
       that [Tiffany] be named the residential parent of Jaden for school
       purposes. The Court should further order that each parent should be


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      considered the residential parent of Jaden anytime that he is in their
      care. * * *

      (d) The Court should find that it is in the best interests of the child
      that [Sidney] be entitled to parenting time with the child on a two
      week rotating basis as follows: Week One, [Jason] should be
      entitled to parenting time with the child on Saturday commencing at
      7:30 a.m. until the following Thursday at 7:30 a.m. Week Two,
      [Sidney] should be entitled to parenting time with the child on
      Tuesday commencing at 7:30 a.m. until Thursday at 7:30 a.m. The
      schedule would then repeat. This would give Father each Tuesday
      and Wednesday and Mother each Thursday and Friday. The parties
      would then alternate extended weekend parenting periods.

      ***

(Mag. Dec. p. 10)

      {¶10} The magistrate also recommended that Sidney be ordered to pay

$134.95 month child support from May through September of 2011, for the period

of time prior to when the CSEA support orders became effective. However,

commencing with the date of the hearing, May 24, 2012, the magistrate

recommended that the court order $0.00 child support should be paid.            This

deviation was based upon the extended parenting time Sidney would have with the

child, and the fact that Tiffany earned more than twice what Sidney earned

($19,136 and $8,970 respectively, pursuant to the attached child support

worksheet dated 09/07/2011; and, $28,329 and $12,324 respectively pursuant to

the worksheet dated 05/25/2012, after both parties experienced increases in

income).


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       {¶11} The magistrate also analyzed all of the factors that should be

considered when deciding a request to change a child’s surname and

recommended that the trial court grant Sidney’s request to change Jaden’s name to

Jaden L. Jones. See In re Willhite, 85 Ohio St.3d 28, 1999-Ohio-201. The

magistrate recommended that Tiffany be entitled to claim the child as a tax

dependent based on the fact that Tiffany’s salary was so much higher and that she

would be most likely to benefit from the tax deduction.

       {¶12} Tiffany filed objections to the magistrate’s decision, claiming errors

in (1) not designating her as the residential parent and Sidney as the non-

residential parent; (2) implementing what was essentially a shared parenting plan

when not requested, and no plan had been submitted; (3) establishing what was

essentially a 5/2 – 2/5 day alternating plan when neither party requested such a

schedule; and, (4) ordering a deviation in the payment of child support to zero.

After reviewing Tiffany’s objections and Sidney’s response to her objections, the

trial court filed a lengthy decision on October 10, 2012, overruling the objections

and finding that the magistrate had properly decided the factual issues and

appropriately applied the law.

       {¶13} We note that in this October 10th “Judgment Entry” overruling

Tiffany’s objections, the trial court stated that, “Based upon its de novo review of

the transcript, the court has deemed it not necessary to hear additional evidence in


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order to issue this ruling.” (Emphasis added.) However, there is no evidence in

the record that a transcript was ever made or filed. In fact, Tiffany’s objections

specifically stated that a transcript of the proceedings was not requested because

the alleged errors could be discerned from the face of the magistrate’s decision

and statutory authority. (Doc. #21, 06/18/2012 Objections to Mag. Dec., p. 6). It

is well established that a trial court speaks only through its journal entries.

Johnson v. Johnson, 194 Ohio App.3d 664, 2011-Ohio-3001, ¶ 16 (3d Dist.).

Therefore, it is imperative that all journal entries must be an accurate and truthful

reflection of what actually occurred, not merely a “boilerplate” rendition. A trial

court must independently review the record and make its own factual and legal

findings; it must not merely utilize a template stating that it has done so. See

Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, ¶ 4 (3d Dist.).

Fortunately in this case, as Tiffany indicated, a de novo review of the transcript

was not necessarily required in order to decide the legal issues that were raised.

       {¶14} On November 8, 2012, the trial court filed its final judgment entry in

the matter, essentially adopting the findings and recommendations in the

magistrate’s decision, with some relevant modifications. The trial court ordered

that “Plaintiff, Tiffany N. Hartley, shall be named residential parent of Jaden Lee

Jones (Hartley).” (Nov. 8, 2012 J.E., ¶ 3) The trial court also ordered that “it is in

the best interest of the child that Defendant [Sidney Jones] be entitled to parenting


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time with the child on a two week rotating basis * * *,” utilizing the 5/2, 2/

5 schedule recommended by the magistrate. (Id. at ¶ 4)

      {¶15} It is from this judgment that Tiffany now appeals, raising 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 [Tiffany]
      as the sole residential parent, and by its adoption of what is in
      essence a shared parenting plan.

                          Second Assignment of Error

      The trial court erred in granting a deviation in child support
      and failed to find same to be in the best interest of the minor
      child.

                               Standard of Review

      {¶16} Custody issues are some of the most difficult decisions a trial judge

must make. Therefore, those decisions rest within the sound discretion of the trial

court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v.

Miller, 37 Ohio St.3d 71, 74 (1988). A court’s decision regarding an award of

custody is subject to reversal only upon a showing of an abuse of that discretion.

Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). A trial court will be found

to have abused its discretion when its decision is contrary to law, unreasonable,

not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No.

9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010–


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Ohio–278, ¶ 17–18 (2d Dist.), citing Black’s Law Dictionary (8 Ed.Rev.2004) 11.

“A reviewing court will not overturn a custody determination unless the trial court

has acted in a manner that is arbitrary, unreasonable, or capricious.” Pater v.

Pater, 63 Ohio St.3d 393 (1992).

       {¶17} The reason for this standard of review is that the trial judge is in the

best position to view the demeanor, attitude, and credibility of each witness and to

weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially

true in a child custody case, since there may be much that is evident in the parties’

demeanor and attitude that does not translate well to the record. Id. at 419.

       [I]t is inappropriate in most cases for a court of appeals to
       independently weigh evidence and grant a change of custody. The
       discretion which a trial court enjoys in custody matters should be
       accorded the utmost respect, given the nature of the proceeding and
       the impact the court’s determination will have on the lives of the
       parties concerned. The knowledge a trial court gains through
       observing the witnesses and the parties in a custody proceeding
       cannot be conveyed to a reviewing court by a printed record. * * *

(Citations omitted.) Miller, 37 Ohio St.3d at 74.

       {¶18} In applying an abuse of discretion standard, a reviewing court is not

free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist.

No. 10–10–10, 2010–Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d

128, (1989). When reviewing a change of child custody proceedings, an appellate

court should be guided by the presumption that trial court’s findings were correct.

Miller at 74.

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                            First Assignment of Error –
                   Residential Parent vs. Shared Parenting Plan

       {¶19} In her first assignment of error, Tiffany maintains that the trial court

erred “in not designating her the sole residential parent and legal custodian of the

minor child,” and complains of the recommendations contained in the magistrate’s

decision stating that she should be the residential parent “for school purposes.”

(Appellant’s Br. p. 2) She further complains that the magistrate was seeking to

implement a shared parenting plan “even though neither party had filed a request

for shared parenting,” and no proposed shared parenting plan had ever been filed

with the Court pursuant to R.C. 3109.04(g). (Id. at p. 3)

       {¶20} We find that the issues raised in this assignment of error are without

merit for several reasons.      First and foremost, Tiffany is asserting errors

concerning the magistrate’s decision, not the trial court’s final judgment. “Claims

of trial court error must be based on the actions taken by the trial court itself,

rather than the magistrate's findings or proposed decision.” In re D.E.W., 2d Dist.

No. 2009 CA2, 2009-Ohio-4116, ¶ 19; Wuich v. Wuich, 2d Dist. No. 25481, 2013-

Ohio-956, ¶ 22. The trial court’s review of a magistrate's decision is de novo.

Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, ¶ 4; Civ.R.

53(D). The trial court must independently review the record and make its own

factual and legal findings, although it may rely upon the credibility determinations

made by the magistrate. Id.; Gilleo v. Gilleo, 3d Dist. No. 10–10–07, 2010-Ohio-

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5191, ¶ 47. Once the de novo review is complete, the trial court may adopt, reject,

or modify the magistrate's decision. Tewalt v. Peacock, 3d Dist. No. 17–10–18,

2011-Ohio-1726, ¶ 31.

         {¶21} In this case, after conducting an independent review, the trial court

issued the final, official judgment entry in this case and unequivocally named

Tiffany as the sole residential parent without any of the limiting or confusing

language that was contained in the magistrate’s recommendation. Therefore, this

part of Tiffany’s assignment of error is meritless and, therefore, overruled.

         {¶22} Contrary to Tiffany’s assertions, the magistrate did not recommend a

shared parenting plan and the trial court did not establish a shared parenting plan.1

While it is true that the parenting time Jaden will spend with each party has been

divided equally, that does not cause the parenting schedule to be considered a

shared parenting plan.            There is a “difference between shared parenting (‘a

concept based on a plan’) and equal parenting time (‘a schedule’).” See Wintrow

v. Baxter-Wintrow, 9th Dist. No. 26439, 2013-Ohio-919, ¶ 5; see also R.C.

3019.04(G), (K), and (L). This Court recently affirmed a Mercer County case

similar to the current case, also between two unmarried parents, wherein the trial

court found that both parties were good parents and allocated them equal time with

their child. See Hay v. Shafer, 3d Dist. No. 10-10-10, 2010-Ohio-4811, ¶ 13. In

1
  Furthermore, as the trial court noted when overruling Tiffany’s objections, her objection, which included
the allegation that “neither party had filed a request for shared parenting,” was factually erroneous because
Sidney did request shared parenting in his original motion.

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Hay v. Shafer, trial court had concerns about the parties' ability to cooperate

sufficiently in order to make the joint decisions necessary in a shared parenting

arrangement. Id.

       {¶23} The record shows that the magistrate and the trial court considered

all of the relevant factors in R.C. 3109.04(F) considering the best interest of the

child before deciding upon parental rights and responsibilities. And, as to the

allocation of parenting time-companionship, or visitation rights, R.C. 3019.051(A)

provides:

       [I]f 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 at the time and under the conditions that the court directs *
       * *. Whenever possible, the order or decree permitting the parenting
       time shall ensure the opportunity for both parents to have frequent
       and continuing contact with the child, unless frequent and continuing
       contact by either parent with the child would not be in the best
       interest of the child. The court shall include in its final decree a
       specific schedule of parenting time for that parent.

R.C. 3019.051(A). That is precisely what the trial court has done in this case.

       {¶24} Based on the above, we do not find that the trial court abused its

discretion in the allocation of parental rights, naming Tiffany the residential

parent, or in the establishment of a schedule for parenting time, allowing Sidney,

the non-residential parent, to have “frequent and continuing contact” amounting to

equal time, with Jaden. The first assignment of error is overruled.

                           Second Assignment of Error –

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                     Deviation from Child Support Guidelines

       {¶25} Tiffany’s second assignment of error asserts that the trial court erred

in deviating from the child support schedule and reducing Sidney’s support

payments to zero.     She claims error because (1) the trial court was without

authority to implement the shared parenting plan which grants Sidney the

additional parenting time upon which the deviation was based, and (2) the trial

court never found that the deviation was in the best interest of the child.

       {¶26} The first part of this assignment of error need not be addressed

because, as found in the discussion relating to the first assignment of error, the

trial court did not implement a shared parenting plan. And, the trial court acted

well within its authority and jurisdiction when it granted Sidney more parenting

time with Jaden than is set forth the court’s standard “Companionship Schedule”

(Appendix J). See R.C. 3109.051. There is no authority or requirement that a trial

court assign parenting time according to a jurisdiction’s “standard” parenting

schedule.    In fact, Hancock County’s “Parenting Plan and Companionship

Schedule” (Rev. 11/1/10), specifically indicates that it is basically a “fall-back”

schedule to be used if “the Court Order or Decree specifically “indicates that the

Court Schedule is the Order for companionship” or “unless otherwise agreed by

the parents.” (App. J.) In this case, the trial court did not choose to utilize the

standardized “Court Schedule,” or leave the scheduling to the discretion of the


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parents; it ordered a very specific schedule of visitation designated to allow both

parents to have equal parenting time with Jaden.

       {¶27} Generally, an appellate court reviews the trial court’s decision

concerning child support for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d

142, 144 (1989). The amount of child support calculated using the child support

guidelines and worksheet is rebuttably presumed to be the correct amount of child

support. R.C. 3119.03; Marker v. Grimm, 65 Ohio St.3d 139 (1992). The trial

court may order an amount that deviates from the worksheet amount if such

amount would be “unjust or inappropriate and would not be in the best interest of

the child.” R.C. 3119.22. The party asserting that a deviation is warranted bears

the burden of presenting evidence that proves the calculated amount is unjust,

inappropriate, or not in the best interest of the child. Pahl v. Haugh, 3d Dist. No.

5-10-27, 2011-Ohio-1302, ¶ 38.

       {¶28} R.C. 3119.23 sets forth a list of non-exclusive “factors relevant to

granting deviation” that a trial court may consider in determining whether to grant

a deviation pursuant to R.C. 3119.22. See Pauly v. Pauly, 80 Ohio St.3d 386,

1997-Ohio-105. Factors relevant to this case, and that were discussed in the

magistrate’s decision and the trial court’s October 10, 2012 order (overruling

Tiffany’s objections), are:

       (D) Extended parenting time or extraordinary costs associated with
       parenting time, * * *

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       (E) The obligor obtaining additional employment after a child
       support order is issued in order to support a second family;

R.C. 3119.23.

       {¶29} Tiffany also raised this issue in the trial court below in her objections

to the magistrate’s decision. The trial court did a lengthy and detailed analysis and

determined the magistrate’s decision had complied with the statutory requirements

to permit a deviation, i.e., a determination that the worksheet amount would be

unjust and not in the best interest of the child, and the provision of providing

specific factual reasons in support of this determination. The trial court’s order

stated as follows:

       [Tiffany] claims that the Magistrate never determined the deviation
       was in the best interest of the child. * * * However, the Magistrate
       considered the best interests of the child when she determined that
       there should be a deviation in the amount of child support to be paid
       pursuant to R.C. 3119.22. R.C. 3119.22 allows the court to order a
       deviation in support if:

       “after considering the factors and criteria set forth in section 3119.23
       of the Revised Code, the court determines that the amount calculated
       pursuant to the basic child support schedule and the applicable
       worksheet, through the line establishing the actual annual obligation,
       would be unjust or inappropriate and would not be in the best
       interest of the child. R.C. 3119.22.”

       The Magistrate did not explicitly list the factors in R.C. 3119.23 in
       her decision, but it is clear she considered many of them in her
       analysis. The Magistrate’s determination that there should be a
       deviation in the amount of child support to be paid was based on the
       fact that [Sidney] would be spending more time with his son. (Mag.
       Dec. at 10(d).) One of the factors in R.C. 3119.23 is “extended

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       parenting time.” Id.; R.C. 3119.23(D). The Magistrate also noted
       that [Tiffany] earns more income than [Sidney]. Id.; R.C.
       3119.23(G). R.C. 3119.23 also allows a court to consider “any other
       relevant factor.” Id.; R.C. 3119.23(P). The Magistrate’s prior
       consideration of the best interest of the child involved factors
       relevant to determining the appropriate child support. (See Mag.
       Dec. at 3-7).

(Oct. 10, 2012 J.E.)

       {¶30} The record clearly demonstrates that both the magistrate and the trial

court determined that a deviation in child support from the statutory worksheet

amount was appropriate in this case, within the context of arriving at a decision

that was in the best interest of the child. The decisions followed the statutory

requirements and included the appropriate worksheet computations along with the

specific facts supporting a deviation, as set forth by R.C. 3119.23. However,

neither the trial court nor the magistrate used the “magic words” contained in the

statute and specifically stated that the calculated worksheet amount “would be

unjust or inappropriate and would not be in the best interest of the child.”

Therefore, we must determine whether the absence of this specific finding in the

judgment entry is fatal to this holding and requires remand. The statute states:

       If it deviates, the court must enter in the journal [1] the amount of
       child support calculated pursuant to the basic child support schedule
       and the applicable worksheet, through the line establishing the actual
       annual obligation, [2] its determination that that amount would be
       unjust or inappropriate and would not be in the best interest of the
       child, and [3] findings of fact supporting that determination.

R.C. 3119.22 (Emphasis and enumeration added.)

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       {¶31} Although we can certainly infer from the record that the trial court

found that the amount of child support computed according to the guidelines was

inappropriate and not in the best interest of the child, R.C. 3119.22 is quite

specific in requiring that “the court must enter in the journal” all three of the

statutory requirements. We acknowledge that there are situations, concerning

different statutes, when it has been found that a trial court may not be required to

explicitly use the “magic words,” although it is usually noted that this is not the

best practice. See e.g., In re. R.C., 3d Dist. 16-09-11, 12, 13, 2010-Ohio-3800

(concerning a placement for permanent custody); Nigro v. Nigro, 9th Dist. No.

04CA008461, 2004-Ohio-6270, ¶ 6 (re explicit statement of “change of

circumstances”); In re Curtis, 3d Dist. No. 9-99-74,75, 76, 2000-Ohio-1725 (in

permanent custody placement, failure to use specific words stating “the child

cannot be placed with either of his parents within a reasonable time”). However,

in this case, the language of the statute stating the requirements as to what must be

placed in the journal entry is quite specific.

       {¶32} The Ohio Supreme Court discussed the mandatory requirements of

this statute and found that “the acceptable procedure for ordering an amount of

child support which deviates from the amount ‘rebuttably presumed’ to be the

correct amount due is for the court to fully comply with the requirements of [the




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statute]2.” (Emphasis sic.) Marker v. Grimm, 65 Ohio St.3d 139 (1992). This

Court has recognized the importance of this holding and strict compliance in this

type of situation, when we held that “any deviation from the child support

guidelines must be found to be in the best interest of the children * * *.”

(Emphasis sic.) Gatliff v. Gatliff, 89 Ohio App.3d 391, 393-394 (3d Dist.1993).

We further stated that the terms of the statute “are mandatory and ‘must be

followed literally and technically in all material respects.’” Id. quoting Marker v.

Grimm, 65 Ohio St.3d at 143.

        {¶33} The trial court failed to follow the literal and technical requirements

of R.C. 3119.22 in its judgment entry. Therefore, we sustain this part of the

second assignment of error, and remand for further consideration as appropriate

under the statute.

        {¶34} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued as to the first assignment of error, we affirm the

judgment of the trial court. However, we sustain the second assignment of error

and remand for further consideration consistent with this opinion.

                                                                     Judgment Affirmed in Part,
                                                                          Reversed in Part and
                                                                             Cause Remanded

ROGERS and SHAW, J.J., concur.


2
 R.C. 3119.22 was previously R.C. 3113.215(B)(1). The essential language of the statute relevant to this
case has not changed.

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