[Cite as In re R.C., 2011-Ohio-4641.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96396




                                        IN RE: R.C., III
                                        A Minor Child




                                         JUDGMENT:
                                         DISMISSED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. CU 09115144


        BEFORE:                Sweeney, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                       September 15, 2011

ATTORNEY FOR APPELLANT
Michael Cretella, Esq.
107 North Court Street, Suite 7
Medina, Ohio 44256

ATTORNEYS FOR APPELLEE, R.C., JR.

Nicole C. Longino, Esq.
11811 Shaker Blvd., Suite 420
Medina, Ohio 44256

Tiffany Wright, Esq.
330 East 211th Street
Euclid, Ohio 44123




JAMES J. SWEENEY, J.:

       {¶ 1} R.W.P. (“mother”) appeals the court’s decision designating R.C., Jr. (“father”)

as the residential parent and legal custodian of their child, R.C., III (“R.C.”).   After reviewing

the facts of the case and pertinent law, we dismiss for lack of a final appealable order.

       {¶ 2} R.C. was born on May 30, 2006, and through the summer of 2009, he resided

with mother and had significant visitation time with father.         In August of 2009, mother

informed father that she was getting married, moving to Tennessee, and taking R.C. with her.

The parties could not agree on a parenting schedule, and father filed an application to

determine custody.    In October of 2009 the parties agreed that R.C. would reside with father
in Cuyahoga County pending the custody determination.

       {¶ 3} After a custody hearing, the court adopted the magistrate’s decision designating

father as R.C.’s residential parent and overruled mother’s objections to the magistrate’s

decision.   The court also continued the matter for determination of mother’s visitation

schedule.   Mother filed an appeal, which we dismissed for lack of a final order. In re:

R.C., Cuyahoga App. No. 94885, 2010-Ohio-4690.

       {¶ 4} On November 22, 2010, mother and father reached an agreement regarding

mother’s visitation schedule, which the magistrate approved and the court adopted.         Mother

appeals, essentially challenging the court’s designating father as R.C.’s residential parent.

       {¶ 5} Mother’s first assignment of error states as follows:

       {¶ 6} “I.    The trial court erred in overruling mother’s objection to magistrate’s

decision by not conducting an independent review.”

       {¶ 7} Pursuant to Civ.R. 53(D)(4)(d), when a court rules on objections to a

magistrate’s decision, it “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.”

       {¶ 8} On September 30, 2010, this court dismissed Appeal No. 94885 for lack of a

final appealable order, holding that “the court failed to make an independent entry of judgment

when overruling objections to the magistrate’s decision * * *.”            Id. at ¶1.   This was
supported by evidence in the record that the court overruled mother’s objections to the

magistrate’s decision on the same day it granted her motion for a transcript of the proceedings

before the magistrate.    Id. at fn. 1.   See Savioli v. Savioli (1994), 99 Ohio App.3d 69, 71,

649 N.E.2d 1295 (holding that “a trial court abuses its discretion when it rules on objections to

a [magistrate’s] report without the benefit of a transcript”).

       {¶ 9} After this court dismissed mother’s first appeal, the trial court issued three

orders: First, on November 17, 2010, the court overruled mother’s motion for independent

entry of judgment for failure to comply with Juv.R. 40(D)(3)(a)(iii) in a timely fashion and

“reiterated” the order that we found lacked finality in Appeal No. 94885.            Second, on

November 18, 2010, the court overruled mother’s supplemental objections to the magistrate’s

decision, finding that “the parties have reached an interim visitation agreement.”     Third, on

January 14, 2011, the court adopted the magistrate’s decision approving the agreed to

visitation schedule.

       {¶ 10} Upon review of the record, we find that the court failed to conduct an

independent review of the magistrate’s order designating father as the residential parent and

legal custodian of R.C.      The court’s finding that mother failed to comply with Juv.R.

40(D)(3)(a)(iii) is unclear, as this rule governs the required “form, filing, and service of [a]

magistrate’s decision” and does not require compliance by the parties.     Additionally, we find

no authority allowing a trial court to “reiterate” a judgment that was previously dismissed on
appeal without correcting the judgment’s deficiencies.

       {¶ 11} Specifically, the court must conduct “a de novo review of any issue of fact or

law that a magistrate has determined when an appropriate objection is timely filed.    The trial

court may not properly defer to the magistrate in the exercise of the trial court’s de novo

review.   The magistrate is a subordinate officer of the trial court, not an independent officer

performing a separate function.”   Knauer v. Keener (2001), 143 Ohio App.3d 789, 793-794,

758 N.E.2d 1234.

       {¶ 12} The court’s independent review shall be based on the record, including but not

limited to the following documents: the January 21, 2010 magistrate’s decision; mother’s

February 4, 2010 objections to the magistrate’s decision; mother’s October 25, 2010

supplemental objections to the magistrate’s decision; and the transcript of the January 7, 2010

hearing before the magistrate, which was filed with the court on October 25, 2010.     We note

that because of the inadvertent procedural delays in the instant case, the supplemental

objections and transcript were filed in a timely manner.

       {¶ 13} Accordingly, the appeal is dismissed and the matter is remanded for further

proceedings consistent with this opinion.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE

KENNETH A. ROCCO, J., and
MELODY J. STEWART, P.J., CONCUR
