[Cite as Rafeld v. Sours, 2014-Ohio-4242.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



TYLER J. RAFELD                                   JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 14 COA 006
CASSIE M. SOURS NKA ZONA

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No.
                                               20124138


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 25, 2014



APPEARANCES:



For Plaintiff-Appellee                         For Defendant-Appellant

NO APPEARANCE                                  L. RAY JONES
                                               Post Office Box 592
                                               Medina, Ohio 44258
[Cite as Rafeld v. Sours, 2014-Ohio-4242.]


Wise, J.

        {¶1}. Appellant Cassie M. Sours, nka Zona appeals the decision of the Ashland

County Court of Common Pleas, Juvenile Division, which named Appellee Tyler J.

Rafeld the residential parent and legal custodian of the parties' minor daughter. The

relevant facts leading to this appeal are as follows.

        {¶2}. Appellant gave birth to T.R., a daughter, in 2007. Appellant and appellee

have never been married, although it appears appellee did sign the child's birth

certificate.

        {¶3}. On November 27, 2012, appellee filed a motion to allocate parental rights

and responsibilities as to T.R.1

        {¶4}. On January 31, 2013, the trial court issued a judgment entry establishing

appellee as T.R.'s father. The remaining issues in appellee's motion were continued.

        {¶5}. The matter proceeded to an evidentiary hearing before a magistrate on

March 12, 2013.

        {¶6}. On July 5, 2013, the magistrate issued a decision recommending that

appellee be named T.R.'s residential parent and legal custodian, with specific parenting

time to appellant. The magistrate further recommended that appellee's child support

obligation would be terminated effective November 27, 2012.

        {¶7}. On July 19, 2013, appellant filed an objection to the magistrate's decision.




1
   Said motion is the first trial court pleading in the record before us. We have not been
provided with documentation of any earlier proceedings concerning T.R., either in court
or with a child support enforcement agency.
Ashland County, Case No. 14 COA 006                                            3


      {¶8}. On February 20, 2014, having reviewed the transcript and record, the trial

court issued a judgment entry adopting the magistrate's decision, with the exception of

modifying summer visitation times.

      {¶9}. On February 28, 2014, appellant filed a notice of appeal. She herein

raises the following three Assignments of Error:

      {¶10}. “I.   INEFFECTIVE        ASSISTANCE      OF     COUNSEL:       COUNSEL

REPEATEDLY INFORMED DEFENDANT THAT BY LAW SHE WAS PRESUMED TO

REMAIN CUSTODIAN UNLESS SHE WAS UNFIT. HER ATTORNEY WAS

OBLIVIOUS TO ORC 3109.04, THAT THE MOTHER AND FATHER STOOD UPON

EQUALITY      WHEN     MAKING        AN   INITIAL   DETERMINATION.      INEFFECTIVE

ASSISTANCE SHOULD BE APPLIED TO A STANDARD CUSTODY CASE, AS WELL

AS A CASE FOR PERMANENT CUSTODY BY A PUBLIC AGENCY, SEE

SUPPLEMENTAL OBJECTIONS FILED OCTOBER 1, 2013 (#34 IN COURT'S

RECORD) AND OCTOBER 28, 2013 (#36 IN THE COURT'S RECORD).

      {¶11}. “II. THE TRIAL COURT ERRED IN NOT HAVING HELD AN IN CAMERA

INTERVIEW OF THE CHILD PRIOR TO THE COURT'S OPINION AND JUDGMENT

ENTRY OF FEBRUARY 20, 2014.

      {¶12}. “III. THE TRIAL COURT ERRED BY RETROACTIVELY ELIMINATING

THE APPELLEE'S CHILD SUPPORT OBLIGATION WITHOUT EVIDENCE OR

CALCULATION SHEETS IN THE RECORD TO SUPPORT SAME.”
Ashland County, Case No. 14 COA 006                                               4


                                                I.

       {¶13}. In her First Assignment of Error, appellant contends she was deprived of

the effective assistance of counsel during the initial custody determination regarding

T.R.

       {¶14}. Appellant essentially maintains that her trial counsel was ineffective in

failing to adequately prepare for an initial custody dispute, particularly in light of R.C.

3109.042, which states as follows: "An unmarried female who gives birth to a child is the

sole residential parent and legal custodian of the child until a court of competent

jurisdiction issues an order designating another person as the residential parent and

legal custodian. A court designating the residential parent and legal custodian of a child

described in this section shall treat the mother and father as standing upon an equality

when making the designation."

       {¶15}. However, we have recognized that a claim of ineffective assistance of

counsel is not a proper ground on which to reverse the judgment of a lower court in a

civil case that does not result in incarceration in its application when the attorney was

employed by a civil litigant. Phillis v. Phillis, 164 Ohio App.3d 364, 842 N.E.2d 555,

2005-Ohio-6200, ¶ 53, citing Roth v. Roth (1989), 65 Ohio App.3d 768, 776, 585 N.E.2d

482. While this court has allowed an exception for “ineffective assistance” claims in civil

permanent-custody appeals (see, e.g., In re Utt Children, Stark App. No. 2003CA00196,

2003-Ohio-4576, 2003 WL 22020802), this is not the case in this instance, and we find

no basis to deviate from our precedent on this issue.

       {¶16}. Appellant's First Assignment of Error is therefore overruled.
Ashland County, Case No. 14 COA 006                                                5


                                                 II.

       {¶17}. In her Second Assignment of Error, appellant contends the trial court erred

by not holding an in camera interview between the court and the child. We disagree.

       {¶18}. R.C. 2151.23 specifically provides that a juvenile court shall exercise its

jurisdiction in child custody matters in accordance with R.C. 3109.04. See, e.g., In re

M.S., Jr., 8th Dist. Cuyahoga No. 99563, 2013–Ohio–4043, ¶ 8.

       {¶19}. Appellant thus directs us to R.C. 3109.04(B)(1), which states as follows:

“(B)(1) When making the allocation of the parental rights and responsibilities for the care

of the children under this section in an original proceeding or in any proceeding for

modification of a prior order of the court making the allocation, the court shall take into

account that which would be in the best interest of the children. In determining the

child's best interest for purposes of making its allocation of the parental rights and

responsibilities for the care of the child and for purposes of resolving any issues related

to the making of that allocation, the court, in its discretion, may and, upon the request of

either party, shall interview in chambers any or all of the involved children regarding

their wishes and concerns with respect to the allocation.” (Emphasis added).

       {¶20}. However, in the case sub judice, appellant did not request an in camera

interview until August 15, 2013, well over a month after the magistrate had issued her

decision as to the allocation of parental rights and responsibilities.

       {¶21}. We note "*** [a] trial court clearly has discretion under Civ.R. 53(D)(4) to

take additional evidence before ruling on objections." Parrick v. Parrick, 3rd Dist.

Hancock No. 5–12–12, 2013-Ohio-422, ¶ 34. Where conflicts arise between the Ohio

Civil Rules and statutory law, the rule will control the statute on matters of procedure.
Ashland County, Case No. 14 COA 006                                                6

See Boyer v. Boyer (1976), 46 Ohio St.2d 83, 346 N.E.2d 286. We therefore hold that a

judge's general discretion whether or not to hear additional evidence on a Civ.R. 53

objection takes precedence over the mandate of R.C. 3019.04(B)(1) where an appellant

has failed to request an in camera interview prior to the decision of the magistrate

hearing the custody issue.

       {¶22}. Accordingly, upon review, we find no merit in appellant's claim that the trial

court was required to conduct an in camera interview of T.R. under the circumstances

presented. Appellant's Second Assignment of Error is overruled.

                                              III.

       {¶23}. In her Third Assignment of Error, appellant contends the trial court erred in

"retroactively eliminating" appellee's child support obligation to November 27, 2012, the

date of appellee's motion to allocate parental rights and responsibilities. We disagree.

       {¶24}. In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio

Supreme Court determined that the abuse-of-discretion standard is the appropriate

standard of review in matters concerning child support. In order to find an abuse of

discretion, we must determine that the trial court's decision was unreasonable, arbitrary,

or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶25}. In Wayco v. Wayco, 5th Dist. Stark No. 1998–CA–00279, 1999 WL

174918 (March 8, 1999), this Court held that absent special circumstances, an order of

the court modifying child support should be retroactive to the date the parties received

notice of the request for modification.
Ashland County, Case No. 14 COA 006                                                 7


       {¶26}. We note appellee asserted in his motion to allocate parental rights and

responsibilities in this matter that he had been the child's "primary caretaker." In light of

Wayco, we are unpersuaded that the trial court abused its discretion in removing

appellee's child support obligation as of the date he filed his said motion to allocate.

       {¶27}. Appellant's Third Assignment of Error is overruled.

       {¶28}. For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Juvenile Division, Ashland County, is hereby affirmed.



By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.


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