[Cite as Morrison v. Morrison, 2018-Ohio-2282.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

BRANDY MORRISON                                        C.A. No.   28514

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CHAD MORRISON, SR.                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellee                                       CASE No.   2011-11-3413

                                DECISION AND JOURNAL ENTRY

Dated: June 13, 2018



        TEODOSIO, Judge.

        {¶1}    Brandy M. Morrison appeals the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division, entered on January 6, 2017. We affirm in part,

and reverse and remand in part.

                                                  I.

        {¶2}    In November 2011, Brandy M. Morrison filed a complaint for divorce against

Chad J. Morrison, Sr., and on March 19, 2013, a magistrate’s decision was issued and a decree of

divorce was entered by the trial court. Ms. Morrison filed objections, which were overruled by

the trial court in October 2013, and subsequently appealed to this Court. On May 28, 2014, we

issued a decision affirming in part and reversing in part, and remanded to the trial court for

further proceedings.

        {¶3}    In June 2014, Ms. Morrison filed several post-decree motions, including a motion

for modification of spousal support, which came before the magistrate for hearing.           On
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September 17, 2014, the magistrate issued a decision which was adopted by the trial court, and

Mr. Morrison subsequently filed an objection, arguing that the decision was entered in error

because a hearing on remand from this Court had yet to take place.

       {¶4}    On October 9, 2014, the hearing on remand was held before the magistrate, and a

decision was issued and adopted by the trial court on December 26, 2014. In January 2015, Ms.

Morrison filed her objections to the magistrate’s decision, and two years later, on January 6,

2017, the trial court overruled Ms. Morrison’s objections.

       {¶5}    Ms. Morrison now appeals, raising four assignments of error, and Mr. Morrison

has filed a cross-appeal, raising one assignment of error. These assignments of error have been

reordered for the purposes of our review.

                                               II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ABUSED ITS DISCRE[T]ION BY NOT RULING ON
       APPELLANT[’]S ORAL MOTION FOR A CONTINUANCE AT TRIAL.

       {¶6}    In her first assignment of error, Ms. Morrison argues the trial court abused its

discretion in overruling her objection to the magistrate’s failure to rule on her motion for a

continuance at the beginning of trial. We disagree.

       {¶7}    “Generally, the decision to adopt, reject, or modify a magistrate’s decision lies

within the discretion of the trial court and should not be reversed on appeal absent an abuse of

discretion.” Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse

of discretion is more than an error of judgment; it means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying this standard, a reviewing court is precluded from simply substituting its
                                                   3


own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶8}   This Court’s decision of May 28, 2014, reversed in part and remanded the order

of the trial court, stating: “Pursuant to R.C. 3109.04(C), the trial court was required to determine

whether it was in the best interest of the children to name Husband the residential parent and to

make specific written findings of fact to support its determination.” On October 9, 2014, a

hearing was held before the magistrate, who stated at the commencement of the hearing:

          The matter has been on remand from the Court of Appeals, 9th District[,] for
          whether it was the best interest of the children to name husband the residential
          parent under 3109(F); whether either party has previously been convicted or plead
          guilty to any criminal offense involving the act that resulted in a child being
          neglected; * * * [whether] either party has been convicted of or [plead] guilty to a
          violation of [R.C.]2919.25 pursuant to [R.C.] 3109.04; [and] the issue of the
          wife’s income * * *. That’s what we’re here for.

Ms. Morrison proceeded to ask for a continuance of the hearing “on the grounds that [the court

had] not presented the finding in facts [sic] pertaining to custody determination in the final

Divorce Decree regarding [R.C.] 3109.04(C) as the District Court of Appeals remanded these

findings be made.” The magistrate responded that the issues before the court were whether it

was in the best interests of the children for Mr. Morrison to be named the residential parent and

whether either parent had been convicted of or plead guilty to a criminal offense. The magistrate

then went forward with the hearing without expressly ruling on Ms. Morrison’s motion to

continue.

          {¶9}   The magistrate stated at the outset that the hearing was in response to this Court’s

directive remanding the case for the trial court to make findings pursuant to R.C. 3109.04.

Correspondingly, findings of fact from the October 9, 2014, hearing were set forth in the

magistrate’s decision entered on December 26, 2014. Ms. Morrison fails to show how going
                                                  4


forward with the hearing prior to the trial court making findings of fact prejudiced her. See

Civ.R.61. We conclude the trial court was not unreasonable, arbitrary, or unconscionable and

did not abuse its discretion.

       {¶10} Ms. Morrison’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION[] BY
       RETROACTIVELY MODIF[Y]ING APPELLANT’S PARENTAL RIGHTS
       AND OBLIGATIONS.

       {¶11} In her second assignment of error, Ms. Morrison argues the trial court abused its

discretion by retroactively modifying her parental rights and obligations when it adopted the

magistrate’s decision on January 9, 2017. We agree.

       {¶12} In our decision of May 28, 2014, this Court concluded “it was error for the trial

court to retroactively modify the parties’ child support obligations to December 5, 2012.” The

December 2014 magistrate’s decision, which was adopted by the trial court on January 6, 2017,

did not correct this error. Mr. Morrison is in agreement that the trial court erred.

       {¶13} We conclude it was error for the trial court to retroactively modify the child

support obligations to December 5, 2012.         Ms. Morrison’s second assignment of error is

sustained.

                                ASSIGNMENT OF ERROR FOUR

       THE TRIAL COURT ERRED AND ABUSED ITS DI[S]CRETION BY NOT
       INCLUD[ING] A CHILD SUPPORT WORKSHEET OR A SPOUSAL
       SUPPORT WORKSHEET.

       {¶14} In her fourth assignment of error, Ms. Morrison argues the trial court erred in

adopting the magistrate’s decision of December 26, 2014, because it did not include a child

support worksheet or a spousal support worksheet. We disagree.
                                               5


       {¶15} On the appeal from an order for child support, a reviewing court reviews the order

of the trial court for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An

abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). When applying this standard, a reviewing court is precluded from simply

substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621 (1993).

       {¶16} R.C. 3119.022 provides:

       When a court or child support enforcement agency calculates the amount of child
       support to be paid pursuant to a child support order in a proceeding in which one
       parent is the residential parent and legal custodian of all of the children who are
       the subject of the child support order or in which the court issues a shared
       parenting order, the court or agency shall use a worksheet identical in content and
       form to the following * * *.

“When it first awards child support, the court must calculate the amount in accordance with the

statutory schedule and the applicable worksheet * * *.” Irish v. Irish, 9th Dist. Lorain No.

10CA009810, 2011-Ohio-3111, ¶ 14.

       {¶17} “R.C. 3119.022 governs the procedures for awarding and calculating child

support. Its provisions are mandatory in nature and must be followed literally and technically in

all material aspects * * *.” Irish at ¶ 14. See also Albright v. Albright, 4th Dist. Lawrence No.

06CA35, 2007-Ohio-3709, ¶ 7; Coward v. Coward, 5th Dist. Licking No. 15-CA-46, 2016-Ohio-

670, ¶ 17. “Completion of a worksheet, identical in content and form to that in R.C. 3119.022, is

mandatory * * *.” Rotte v. Rotte, 12th Dist. Butler No. CA2004-10-249, 2005-Ohio-6269, ¶ 21.

       {¶18} On March 19, 2013, a magistrate’s decision and a corresponding child support

computation worksheet were filed. That same day, the trial court entered a judgment adopting

the magistrate’s decision, and child support was determined as follows:
                                                 6


       18. Effective December 5, 2012, Husband’s child support shall terminate. Any
       child support overage shall be credited to either child support arrearage or
       Husband’s spousal support. Any child support arrearage shall not merge with this
       Order.

       19. Effective December 5, 2012, Wife shall pay to Husband child support of
       $363.67 per month for three minor children, plus a 2% processing charge, for a
       total of $370.94 per month. Chief Magistrate Allen G. Carter, Sr. prepared the
       attached child support worksheet showing the calculation incorporated herein and
       made a part hereof.

       20. If private health insurance becomes unavailable, then Wife shall pay child
       support of $363.67 per month for three children, plus a 2% processing charge, and
       cash medical support of $114.00 per month plus processing charge for a total of
       $116.28 per month.

On December 26, 2014, a magistrate’s decision was entered in response to the remand from this

Court. That decision contains language identical to the language from the March 2013 decision

quoted above. Although the December 2014 decision references the child support worksheet

prepared by the magistrate, the record does not indicate that the worksheet was attached to the

decision.   Also on December 24, 2014, the trial court adopted the magistrate’s decision,

including a verbatim reiteration of the language from the March 2013 decision.

       {¶19} The trial court’s order of December 2014 made no modifications to the child

support terms originally set forth in the court’s March 2013 judgment. Even if Ms. Morrison is

correct that the trial court should have attached the child support worksheet to its 2014 order, she

has not demonstrated that she was prejudiced by that error. “Under Rule 61 of the Ohio Rules of

Civil Procedure, harmless errors are to be disregarded.” Oak Park Mgt. Corp. v. Via, 9th Dist.

Wayne No. 07CA0022, 2008-Ohio-2493, ¶ 5.

       {¶20} The fourth assignment of error also states that the trial court erred by not

including a spousal support worksheet, however Ms. Morrison provides no support for this

theory in her brief. “It is not this Court’s duty to create an appellant’s argument for [her].”
                                                7


Thomas v. Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 8. This Court declines

to chart its own course when an appellant fails to provide guidance. Young v. Slusser, 9th Dist.

Wayne No. 08CA0019, 2008-Ohio-4650, ¶ 7.

       {¶21} Ms. Morrison’s fourth assignment of error is overruled.

                  CROSS-APPELLANT’S ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ABUSED ITS DISCRETION BY SUMMARILY
       OVERRULING   CROSS-APPELLANT’S   OBJECTION    TO   THE
       MAGISTRATE’S DECISION OF SEPTEMBER 17, 2014[,] WITHOUT
       UNDERTAKING ANY INDEPENDENT REIVEW.

       {¶22} In his lone assignment of error, Mr. Morrison argues the trial court abused its

discretion by failing to undertake an independent review in ruling on his objection to the

magistrate’s decision entered on September 17, 2014. We agree.

       {¶23} “[T]he decision to adopt, reject, or modify a magistrate’s decision lies within the

discretion of the trial court and should not be reversed on appeal absent an abuse of discretion.”

Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5.                 An abuse of

discretion implies that a trial court was unreasonable, arbitrary or unconscionable in its

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As a reviewing court

applying the abuse of discretion standard, we may not substitute our judgment for that of the trial

court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶24} Civ.R. 53(D)(4)(d) provides: “In ruling on objections, the court 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.” “The independent review that

is required of the trial court has two components: (1) whether, with respect to the objected

matters, the magistrate properly determined the factual issues before it, and (2) whether the
                                                8


magistrate appropriately applied the law to those factual determinations.” Lakota v. Lakota, 9th

Dist. Medina No. 10CA0122-M, 2012-Ohio-2555, ¶ 14.

       {¶25} “An appellate court reviewing a lower court’s judgment indulges in a presumption

of regularity of the proceedings below.” Hartt v. Munobe, 67 Ohio St.3d 3, 7 (1993). “Appellate

courts thus presume that a trial court conducted an independent analysis in reviewing a

magistrate’s decision in accordance with Civ.R. 53(D)(4)(d) * * *.” Faulks v. Flynn, 4th Dist.

Scioto No. 13CA3568, 2014-Ohio-1610, ¶ 27. “Accordingly, a party asserting error bears the

burden of affirmatively demonstrating the trial court’s failure to perform its * * * duty of

independent analysis.” Freeman v. Freeman, 9th Dist. Wayne No. 07CA0036, 2007-Ohio-6400,

¶ 53. “An affirmative duty requires more than a mere inference, it requires appellant to provide

the reviewing court with facts to rebut our general presumption.” In re Taylor G., 6th Dist.

Lucas No. L-05-1197, 2006-Ohio-1992, ¶ 21.

       {¶26} “[T]he mere fact the trial court did not cite any specific portion of a transcript or

exhibit does not demonstrate the court failed to conduct an independent review of the objected

matters as required by Civ.R. 53(D)(4)(d).” In re G.C., 12th Dist. Butler Nos. CA2016-12-237,

CA2016-12-238, CA2016-12-239, & CA2016-12-240, 2017-Ohio-4226, ¶ 18. “While citing

such material would tend to demonstrate that the trial court conducted the requisite independent

review, there is no requirement in Civ.R. 53(D)(4)(d) that the trial court do so.” Hampton v.

Hampton, 12th Dist. Clermont No. CA2007-03-033, 2008-Ohio-868, ¶ 17. Likewise, we cannot

conclude that the trial court did not conduct an independent review simply because it did not

discuss every conceivable characterization of the evidence. See Brandon v. Brandon, 3d Dist.

Mercer No. 10-08-13, 2009-Ohio-3818, ¶ 35.
                                                 9


       {¶27} In July 2014, a hearing was conducted before the magistrate upon motions filed

by Ms. Morrison, and on September 17, 2014, a magistrate’s decision was issued and adopted by

the trial court. Among other terms, the trial court’s judgment entry set spousal support to be paid

to Ms. Morrison in the amount of $1,250.00 per month, plus a 2% processing fee. On October 1,

2014, Mr. Morrison filed his objection to the September 2014 magistrate’s decision.               In

December 2014 and January 2015, entries by the trial court noted that Mr. Morrison’s objection

remained pending. Mr. Morrison filed a supplemental objection to the magistrate’s decision in

March 2015.

       {¶28} On January 6, 2017, the trial court entered an order, captioned: “JOURNAL

ENTRY Ruling on Objections to the Decree issued on December 26, 2014.” In its entirety, the

entry provides:

               The court denies the objections filed on January 9, 2015. The court has
       reviewed the ruling remanding the matter back to the court for further findings,
       the transcript, the evidence, the testimony and all the supplemental briefs filed and
       the entire record, and concludes that the record supports the magistrate’s decision.
       All pending motions and orders are merged and dismissed into this ruling.
               Therefore, the decree filed on December 26, 2014[,] is the final order of
       the court as attached in the court’s exhibit “A”.
               IT IS SO ORDERED.

The entry makes no reference to the magistrate’s decision dated September 17, 2014, nor does it

make reference to Mr. Morrison’s pending objections to that decision. Likewise, the order

attached as exhibit “A” does not reference or incorporate the September 2014 magistrate’s

decision.

       {¶29} Although there is a presumption that a trial court has conducted an independent

analysis in reviewing a magistrate’s decision in accordance with Civ.R. 53(D)(4)(d), we

conclude there is nothing in the trial court’s journal entry dated January 6, 2017, that indicated an

independent review or analysis was conducted with regard to the September 2014 magistrate’s
                                               10


decision and Mr. Morrison’s corresponding objections. The entry clearly stated it ruled upon

objections to the decree issued on December 26, 2014, and specifically denied the objections

filed on January 9, 2015. It then referenced and attached the December 2014 decree.

        {¶30} The issue before us does not merely implicate the presumption that a trial court

conducted an independent analysis in reviewing a magistrate’s decision; rather, this Court cannot

conclude that any review or consideration was given to the September 2014 magistrate’s

decision and Mr. Morrison’s objections thereto. Specifically, no ruling either sustaining or

overruling the objections is given. Although the trial court states “[a]ll pending motions and

orders are merged and dismissed into this ruling[,]” we cannot presume this statement constitutes

a ruling on objections. Likewise, we are unable to determine whether this language constitutes

an intent to vacate the September 2014 magistrate’s decision, or conversely, an intent to

incorporate the decision into the final order. Given the ambiguous nature of the language, we are

unable to conclude the trial court conducted an independent review.

        {¶31} Mr. Morrison’s assignment of error is sustained.

                             ASSIGNMENT OF ERROR THREE

        THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
        MODIFYING      APP[E]LLANT[’]S   PARENTAL    RIGHTS    AND
        RESPONSIB[IL]IT[IES] WITHOUT ANY PRIOR MOTIONS TO MODIFY.

        {¶32} In her third assignment of error, Ms. Morrison argues the trial court erred by

modifying her parental rights and responsibilities without a prior motion to modify.         Ms.

Morrison contends that the trial court’s adoption of the December 2014 magistrate’s decision

was a modification of the terms set forth in the magistrate’s decision issued on September 17,

2014.
                                                11


       {¶33} We do not reach the merits of this assignment of error because our resolution of

Mr. Morrison’s assignment of error necessitates further consideration by the trial court. We

therefore decline to address Ms. Morrison’s third assignment of error as it is not ripe for our

consideration.

                                                III.

       {¶34} Ms. Morrison’s first and fourth assignments of error are overruled.              Ms.

Morrison’s second assignment of error is sustained.        We therefore decline to address Ms.

Morrison’s third assignment of error as it is not ripe for our consideration. Mr. Morrison’s

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas,

Domestic Relations Division, is affirmed in part and reversed in part, and the cause is remanded

for further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed equally to both parties.




                                                  THOMAS A. TEODOSIO
                                                  FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

BRANDY MORRISON, pro se, Appellant.

JOSEPH A. KACYON and RACHEL L. SMICK, Attorneys at Law, for Appellee.
