[Cite as In re K.D., 2012-Ohio-2234.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
: C.A. CASE NO. 24764
IN RE: K.D.-J.
: T.C. CASE NO. JC2007-5731
: (Civil Appeal from Common
Pleas Court, Juvenile
: Division)
.........
OPINION
Rendered on the 18th day of May, 2012.
.........
Lenora C. Davis, 4425 North Clayton Road, Brookville, OH 45309
Appellant, Pro Se
B. Randall Roach, Atty. Reg. No. 0065537, 26 N. Wright Ave., Fairborn, OH 45324
Attorney for Appellee
.........
GRADY, P.J.:
{¶ 1} Appellant, Lenora Davis, appeals from a final order of the juvenile court
overruling her objections to a magistrate’s decision dismissing her motion to modify parental
rights and responsibilities.
{¶ 2} Lenora Davis and Matthew Jenkins are the parents of a minor child, K.D.-J.,
who was born on November 9, 2001. On June 8, 2007, Matthew filed a complaint for
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establishment of paternity and to allocate parental rights and responsibilities. Lenora
opposed Matthew’s request. The parties subsequently filed a shared parenting agreement
with the court. On July 1, 2008, the juvenile court found that shared parenting was in the
best interest of K.D.-J. and adopted the shared parenting agreement as an order of the court.
{¶ 3} On January 15, 2010, Lenora filed a petition for sole custody of K.D.-J.
Matthew subsequently filed a petition for termination of shared parenting and requested the
allocation of parental rights and responsibilities. A guardian ad litem was appointed and
submitted a report to the juvenile court, recommending that Matthew be given custody of
K.D.-J. On July 27, 2010, the magistrate issued a decision granting legal custody of K.D.-J.
to Matthew. Lenora was granted visitation pursuant to the standard order of visitation.
{¶ 4} Lenora filed timely objections to the magistrate’s decision. On August 23,
2010, while Lenora’s objections were pending, Matthew filed a motion for interim orders
regarding custody and parenting time. He requested that the trial court adopt the magistrate’s
decision as a temporary order of the court. On September 1, 2010, the trial court granted
Matthew’s motion, stating:
The Court notes that objections to the Magistrate’s Decision and
Judge’s Order were filed by the mother, pro se, on August 6, 2010, creating an
automatic stay of that decision pending a ruling on the objections. After
review of the case and for good cause shown, the Court, finding it to be in the
child’s best interest, hereby removes the stay of the Magistrate’s Decision and
Judge’s Order filed July 27, 2010, and confirms said decision as an interim
order pending a decision on the objections.
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{¶ 5} On January 14, 2011, while Lenora’s objections to the magistrate’s July 27,
2010 decision remained pending, Lenora filed a “Motion and Petition of Orders of Emergency
and Permanent Custody.” She requested that the court grant her custody of K.D.-J. and
re-allocate parental rights and responsibilities based on Matthew’s recent alleged neglect or
abuse of K.D.-J. A hearing on Lenora’s motion was held before a magistrate. On May 17,
2011, the magistrate issued a decision, dismissing Lenora’s motion without prejudice because
Lenora’s objections to the July 27, 2010 decision allocating parental rights and responsibilities
were still pending. Lenora filed objections and supplemental objections to the magistrate’s
May 17, 2011 decision.
{¶ 6} On July 14, 2011, the juvenile court overruled Lenora’s objections to the May
17, 2011 decision and adopted the magistrate’s decision as an order of the court. The
juvenile court stated, in part:
Any decision made by the Court regarding a motion for custody would
be premature before a final ruling on the previous custody motion is entered.
A ruling on the pending objection made subsequent to a decision entered on a
new custody motion would render the latter void. Therefore, the Magistrate
was correct in her Decision to dismiss the motion for custody.
Ms. Davis has also expressed uncertainty over which Court order to
proceed upon and asserts the interim order filed September 1, 2010 has
expired. Juv. R. 40(D)(4)(e)(ii) requires the Court to extend the effective date
of an interim order every twenty-eight (28) days past the date of entry.
However, the Entry filed September 1, 2010 removing the stay of the
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Magistrate’s Decision confirmed said Decision “as an interim order pending a
decision on the objections.” Therefore, the interim order has been impliedly
extended until such time as a decision is rendered on Ms. Davis’ pending
objections. The Court affirms the Magistrate’s Decision and Judge’s Order
filed July 27, 2010 as an interim order pending a ruling on the objections.
{¶ 7} Lenora filed a timely notice of appeal from the July 14, 2011 order, raising the
following two assignments of error:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DISMISSING THE MOTION FOR
CUSTODY SIMPLY BECAUSE THERE WERE PENDING OBJECTIONS
TO A MAGISTRATE’S DECISION ON A PREVIOUS MOTION FOR
CUSTODY.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN IMPLIEDLY EXTENDING THE
INTERIM ORDER UNTIL THE PENDING OBJECTIONS WERE RULED
UPON.
{¶ 8} At the time the juvenile court overruled Lenora’s objections to the magistrate’s
May 17, 2011 decision dismissing her January 14, 2011 motion, Lenora’s objections to the
magistrate’s July 27, 2010 decision allocating parental rights and responsibilities, which the
juvenile court had adopted as its interim order, were still pending. In its July 14, 2011 order,
the juvenile court explained the dilemma that it faced, were it to rule on Lenora’s objections to
the May 17, 2011 magistrate’s decision before the court had ruled on the objections to the July
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27, 2010 magistrate’s decision.1 While we acknowledge this dilemma, Juv.R. 40(D)(4)(b)
sets forth a clear method for resolving it.
{¶ 9} Juv.R. 40(D)(4)(b) provides:
Action on magistrate’s decision. Whether or not objections are timely
filed, a court may adopt or reject a magistrate’s decision in whole or in part,
with or without modification. A court may hear a previously-referred matter,
take additional evidence, or return a matter to a magistrate.
{¶ 10} The “matter” before the court was the allocation of parental rights and
responsibilities for K.D.-J. While Lenora’s objections to the July 27, 2010 decision which
the court had adopted as its interim order were pending, Lenora came to believe that Matthew
had abused or neglected K.D.-J., and that this abuse or neglect justified a change in the
allocation of parental rights and responsibilities set forth in the interim order. Lenora’s
motion of January 14, 2011 presented those issues and sought relief. Pursuant to Juv.R.
40(D)(4)(b), the preferred method of dealing with Lenora’s January 14, 2011 motion was for
the juvenile court to take additional evidence or return the matter to the magistrate. Either
avenue of relief would permit the additional evidence that had arisen since the magistrate’s
July 27, 2010 decision to be considered as expeditiously as possible, and there would have
been no need to dismiss Lenora’s January 14, 2011 motion as premature. Alternatively, the
court could have held the January 14, 2011 motion in abeyance for determination, until the
1
This dilemma apparently resulted from a lengthy delay
between the date of the magistrate’s decision and the date on
which the transcript of the hearing before the magistrate was
filed with the court.
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pending matter had been resolved.
{¶ 11} Based on a review of the record before us, we believe the juvenile court abused
its discretion by ignoring the procedure set forth in Juv.R. 40(D)(4)(b) and failing to take
additional evidence or remand the matter to the magistrate for consideration of the additional
evidence Lenora sought to introduce through her January 14, 2011 motion, and instead
dismissing the motion, which prejudiced Lenora. The first assignment of error is sustained.
{¶ 12} In her second assignment of error, Lenora argues that the juvenile court erred in
finding that it had implicitly extended its September 1, 2010 interim order during the lengthy
time that Lenora’s objections to the magistrate’s July 27, 2010 decision remained pending.
We agree.
{¶ 13} Juv.R. 40(D)(4)(e)(ii) provides:
Interim order. The court may enter an interim order on the basis of a
magistrate’s decision without waiting for or ruling on timely objections by the
parties where immediate relief is justified. The timely filing of objections
does not stay the execution of an interim order, but an interim order shall not
extend more than twenty-eight days from the date of entry, subject to extension
by the court in increments of twenty-eight additional days for good cause
shown.
{¶ 14} The juvenile court entered its interim order on September 1, 2010. Pursuant to
Juv.R. 40(D)(4)(e)(ii), the interim order would expire twenty-eight days later unless the court
extended the order. There is no basis in the record to find that the court extended the order.
Matthew concedes on appeal that the juvenile court did not extend the order pursuant to
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Juv.R. 40(D)(4)(e)(ii). Further, the juvenile court acknowledged that it did not explicitly
extend the interim order. Rather, the court stated that it had “impliedly” extended the interim
order when it stated in the September 1, 2010 order that the magistrate’s decision was
confirmed “as an interim order pending a decision on the objections.” We do not agree.
Juv.R. 40(D)(4)(e)(ii) does not provide for “implied” extensions of interim orders. Rather, an
interim order can only be extended in twenty-eight day increments through additional orders
of the juvenile court that explicitly make a finding of good cause for the additional extensions.
{¶ 15} The juvenile court’s September 1, 2011 interim order expired twenty-eight
days later. Therefore, the second assignment of error is sustained.
{¶ 16} Having sustained the two assignments of error, we will reverse the judgment of
the juvenile court and remand the cause for further proceedings consistent with this Opinion.
{¶ 17} Matthew states in his appellate brief that the issues before us are now moot
because “[s]ubsequent to the July 14, 2011 Decision and Judgment of the Trial Court the
Appellant re-filed her custody complaint. The matter was heard on December 5, 2011.”
(Brief, p. 4.) There is nothing in the record before us demonstrating that has in fact occurred.
Further, Matthew concedes in his appellate brief that no judgment has been rendered from
this December 5, 2011 hearing. If, in fact, the court has decided Lenora’s abuse or neglect
complaints raised in her January 14, 2011 motion which is the subject of this appeal, then on
remand there should be no need for the juvenile court to again rule on Lenora’s motion.
DONOVAN, J., And HALL, J., concur.
Copies mailed to:
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Lenora C. Davis
B. Randall Roach, Esq.
Hon. Nick Kuntz