[Cite as O'Brien v. O'Brien, 2012-Ohio-5185.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98336



                                   DARBY B. O’BRIEN

                                                      PLAINTIFF-APPELLANT

                                                vs.

                               ANTHONY A. O’BRIEN
                                                      DEFENDANT-APPELLEE




                                  JUDGMENT:
                            AFFIRMED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Domestic Relations Division
                                       Case No. D-291463

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

        RELEASED AND JOURNALIZED:                     November 8, 2012
ATTORNEY FOR APPELLANT

Madelon Sprague
20600 Chagrin Boulevard, No. 1111
Shaker Heights, OH 44122


ATTORNEY FOR APPELLEE

Edward W. Rausch
Edward W. Rausch & Associates
6300 Rockside Road, Suite 204
Cleveland, OH 44131


GUARDIAN AD LITEM

Pamela L. Gorski
19111 Detroit Road, Suite 205
Rocky River, OH 44116
MELODY J. STEWART, P.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas, and

the briefs and oral arguments of counsel.

       {¶2} Appellant Darby O’Brien (n.k.a. Schwartz), appeals from two separate orders

entered by the domestic relations division relating to the modification of parenting time

granted to her former husband, appellee Anthony O’Brien.

       {¶3} The divorce decree established a shared parenting plan for the parties’ three

children. In October 2011, Anthony filed a motion to modify the shared parenting plan

as it related to the oldest child.   The child is considered a prospect for college lacrosse,

so Anthony sought permission to have the child attend a boarding high school where the

child might better develop his talent. Darby opposed the motion on several grounds,

primarily arguing that the child’s school transfer would force him to repeat a grade and

that Anthony’s representations that he would assume the entire cost of the $40,000 tuition

were dubious given his prior bankruptcy filings and alleged failure to pay Darby her share

of the marital assets from the 2007 divorce decree.

       {¶4} On March 19, 2012, a magistrate amended the parties’ parenting time to issue

an “interim” order that gave Anthony parenting time every Tuesday and Thursday,

“following school until 5:30 P.M.” for the purpose of tutoring the child in three different
school subjects.   The magistrate noted that the interim order would “remain in place

until further order of Court.”

       {¶5} On March 22, 2012, the court noted that Anthony voluntarily dismissed his

October 2011 motion to modify the shared parenting plan without prejudice, but it

specifically stated in the same order that the magistrate’s interim order regarding the

child’s tutoring “shall remain in place until further order of Court.”

       {¶6} On April 2, 2012, Darby filed a motion to “set aside” that portion of the

March 19, 2012 magistrate’s order that stated that the interim order relating to the child’s

tutoring would remain in place until further order of the court. On April 9, 2012, the

court denied Darby’s motion to set aside the magistrate’s order.         Darby filed her notice

of appeal on May 9, 2012, listing both the magistrate’s March 19, 2012 order and the

April 9, 2012 order denying the motion to set aside the magistrate’s order.

       {¶7} We first address Darby’s argument that the magistrate lacked jurisdiction to

issue an interim order that modified the shared parenting plan because Anthony dismissed

his motion to modify custody prior to the magistrate issuing the interim order. The flaw

with this argument is that, regardless of what Anthony might have represented before the

magistrate issued her decision, the dismissal of the motion to modify the shared parenting

plan was not effective until he actually dismissed the motion. Civ.R. 41(A)(1) requires

the “filing” of a notice of dismissal, so the rule does not allow a party to orally dismiss

claims.     Mellino v. Charles Kampinski Co., L.P.A., 8th Dist. No. 85090,
2005-Ohio-2000, ¶ 3. The motion was dismissed on March 22, 2012, as memorialized

by the court order that had been approved by Anthony’s attorney.

       {¶8} With the magistrate having jurisdiction to issue an order on Anthony’s motion

to modify the shared parenting plan, Darby had the obligation to make a timely motion to

set aside the magistrate’s order.     Civ.R. 53(D)(2)(b) states:    “Any party may file a

motion with the court to set aside a magistrate’s order. The motion shall state the

moving party’s reasons with particularity and shall be filed not later than ten days after

the magistrate’s order is filed.”   The magistrate filed the order on March 19, 2012, but

Darby did not file her motion to set aside the magistrate’s order until April 2, 2012 — 14

days after the magistrate’s order had been issued.           The motion to set aside the

magistrate’s order was untimely and precludes Darby from arguing on appeal that the

court erred by refusing to set aside the magistrate’s order. Hayne v. Hayne, 9th Dist. No.

07CA0100-M, 2008-Ohio-4296, ¶ 36.

       {¶9} Nevertheless, it is unclear to us whether the interim order remains in effect.

The interim order stated that the additional parenting time granted to Anthony was for the

purpose of tutoring the child in “Biology, Spanish and Geometry.” Although the order

was of indefinite duration, the specificity of the school subjects listed in the order is such

that it appears the order should have    expired once the 2011-2012 school term ended or

the child no longer took those specific classes. If the child is no longer taking the

specified classes, the basis for the interim order no longer exists and the interim order

must be terminated. In the event additional tutoring is requested, we trust that the court
will consider that request de novo on the evidence.      We therefore remand this case for

the sole purpose of having the court determine the status of the interim order.

       {¶10} Judgment affirmed and remanded for further proceedings consistent with

this opinion.

       It is ordered that appellee recover of appellant his costs herein

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas — Domestic Relations Division to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
