McCandlish v. McCandlish

[Cite as McCandlish v. McCandlish, 2013-Ohio-5066.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

MARK MCCANDLISH, JR. : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13-CA-37
:
TIFFANY MCCANDLISH :
:
:
Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Domestic Relations
Division, Case No. 06 DR 01908 CRB

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 8, 2013

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

CINDY RIPKO No Appellate Brief Filed
35 S. Park Pl., #201
Newark, OH 43055
Licking County, Case No.13-CA-37 2

Delaney, J.

{¶1} Plaintiff-Appellant Mark McCandlish, Jr. appeals the March 8, 2013

judgment entry of the Licking County Court of Common Pleas, Domestic Relations

Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellant Mark McCandlish, Jr. (“Father”) and Defendant-

Appellee Tiffany McCandlish (“Mother”) are the parents of D.M., born September 29,

1999 and B.M., born October 13, 2003. Mother and Father’s marriage was terminated

by Decree of Dissolution on February 15, 2007.

{¶3} The Decree of Dissolution named Father as the sole legal custodian and

residential parent of the minor children. The Separation Agreement stated neither party

would pay child support.

{¶4} On August 22, 2012, Mother filed a pro se Post-Decree Motion for

Modification of Residential Parent and Legal Custodian with the Licking County Court of

Common Pleas, Domestic Relations Division. Mother requested the trial court name

her as the legal custodian and residential parent of D.M. On the pre-printed motion

form, Mother checked the boxes which stated, “Now comes Tiffany Clark and asks this

honorable Court to permanently change the residential parent and legal custodian of the

minor child(ren), namely: [D.M.]. The reasons for this motion are explained below in the

Memorandum in Support. I also request that the Court enter an ex parte order of

temporary custody and/or visitation pursuant to Local Rule 8.61. The reasons for this

request are included in the attached affidavit.” Mother did not check the box which

stated, “I also request that the Court enter orders concerning parenting times, child
Licking County, Case No.13-CA-37 3

support, health insurance coverage, the payment of the child(ren)’s uninsured health

care expenses, and allocation of the right to claim the child(ren) for income tax

purposes.” Father was served with the motion.

{¶5} An expedited hearing on the issue of temporary custody was held on

September 11, 2012. Father was served with notice of the hearing and did not appear

at the hearing.

{¶6} A full hearing on the motion was held before a magistrate on November 7,

2012. Mother appeared at the hearing pro se. Father, although served with notice of

the hearing, did not appear at the hearing. At the hearing, Mother testified as the sole

witness and the magistrate asked questions of Mother.

{¶7} The magistrate issued her decision on November 20, 2012. Pursuant to

R.C. 3109.04(E)(1)(a), the magistrate concluded there was a change in circumstances

warranting a modification of the custodial arrangement and it was necessary to serve

the best interests of the child for Mother to become the legal custodian and residential

parent of D.M. Parenting time with Father would be at Mother’s sole discretion.

{¶8} The magistrate found D.M. had been residing with Mother since

approximately September 2012. D.M. came to live with Mother after D.M. had a

disagreement with Father’s new wife. D.M. is enrolled in school located where Mother

resides.

{¶9} Under the terms of the decree of dissolution, neither party paid child

support, but Mother was making “in-kind contributions” for the children. While Mother

had physical custody of D.M., Father did not make in-kind contributions to Mother. The

magistrate determined Mother earned approximately $31,000 per year. From Mother’s
Licking County, Case No.13-CA-37 4

testimony, the magistrate found Father worked full-time and made approximately what

he earned at the time of the dissolution, $50,000 per year. The magistrate ordered

Father to pay child support to Mother for D.M. pursuant to the child support computation

worksheet.

{¶10} Under the dissolution decree, Mother and Father divided the uninsured

health expenses for the child. The magistrate recommended Father pay 100% of the

uninsured costs related to mental health counseling for D.M. Mother was ordered to

immediately enroll D.M. in counseling.

{¶11} Father filed a Motion for Relief from Magistrate’s Decision and Hearing to

Supplement the Record on December 10, 2012. In his motion, Father argued pursuant

to Civ.R. 60(B)(1), the magistrate’s decision should be vacated due to Father’s

excusable neglect for his failure to appear at the November 7, 2012 hearing. Father did

not dispute the change in custody. Father argued he did not appear at the November 7,

2012 hearing because Mother’s August 22, 2012 motion did not give Father notice that

issues other than a change of custody would be discussed at the hearing.

{¶12} The trial court denied the motion on January 8, 2013.

{¶13} Father filed objections to the magistrate’s decision on January 16, 2013.

In his motion, he objected to the magistrate asking questions of Mother during the

hearing, the magistrate’s use of Mother’s testimony to establish Father’s salary, and the

lack of parenting time with D.M.

{¶14} The trial court overruled Father’s objections on January 31, 2013. The

trial court stated it conducted an independent review and found the magistrate correctly

determined the factual issues and appropriately applied the law. The trial court noted if
Licking County, Case No.13-CA-37 5

Father wanted to present evidence and make arguments, he could have appeared at

the November 7, 2012 hearing. The trial court adopted the magistrate’s decision on

March 8, 2013.

{¶15} It is from this decision Father now appeals.

ASSIGNMENTS OF ERROR

{¶16} Father raises three Assignments of Error:

{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

VACATE THE MAGISTRATE’S ORDER AND REMAND THE MATTER BACK TO THE

MAGISTRATE FOR FURTHER HEARING.

{¶18} “II. THE MAGISTRATE EXCEEDED THE SCOPE OF HER AUTHORITY

IN ‘ASSISTING’ THE SECOND PETITIONER IN THE PRESENTATION OF HER

CASE.

{¶19} “III. THE TRIAL COURT BREACHED ITS DUTY OF IMPARTIALITY BY

THE NATURE AND EXTENT OF THE ASSISTANCE PROVIDED TO THE SECOND

PETITIONER.”

ANALYSIS

{¶20} The instant case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for

the court's decision as to each error to be in brief and conclusionary form.
Licking County, Case No.13-CA-37 6

The decision may be by judgment entry in which case it will not be

published in any form.

{¶21} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than in

a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463

N.E.2d 655 (10th Dist.1983).

{¶22} This appeal will be considered with the above in mind.

I.

{¶23} Father argues in his first Assignment of Error that the trial court abused its

discretion when it denied Father’s motion to vacate the magistrate’s decision. We

disagree.

{¶24} The decision whether to grant a motion for relief from judgment under

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d

75, 514 N.E.2d 1122 (1987). In order to find abuse of discretion, we must determine the

trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

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

{¶25} A party seeking relief from judgment pursuant to Civ.R .R. 60(B) must

show: “(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to

relief under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must

be timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,

351 N.E.2d 113 (1976), paragraph two of the syllabus. A failure to establish any one of

these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v.
Licking County, Case No.13-CA-37 7

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo Plastic Prod. Co. v.

Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984).

{¶26} Father brought his motion to vacate under Civ.R. 60(B)(1). Civ.R. 60(B)

states in pertinent part,

On motion and upon such terms as are just, the court may relieve a party *

* * from a final judgment, order or proceedings for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect; * * *. The motion

shall be made within a reasonable time, and for reasons (1), (2), and (3)

not more than one year after the judgment, order, or proceeding was

entered to taken.

{¶27} Father argues it was excusable neglect that he did not appear at the

November 7, 2012 hearing. Father did not dispute the change in custody. He argues

he was not aware that more would be resolved at the hearing than the change of

custody. In support of his argument, Father refers to the pre-printed motion form

Mother filed to request a modification of custody. On the pre-printed motion form,

Mother checked the boxes which stated, “Now comes Tiffany Clark and asks this

honorable Court to permanently change the residential parent and legal custodian of the

minor child(ren), namely: [D.M.]. The reasons for this motion are explained below in the

Memorandum in Support. I also request that the Court enter an ex parte order of

temporary custody and/or visitation pursuant to Local Rule 8.61. The reasons for this

request are included in the attached affidavit.” Mother did not check the box which

stated, “I also request that the Court enter orders concerning parenting times, child

support, health insurance coverage, the payment of the child(ren)’s uninsured health
Licking County, Case No.13-CA-37 8

care expenses, and allocation of the right to claim the child(ren) for income tax

purposes.” Because Mother did not check the third box, Father argues it was excusable

neglect that he did not attend the hearing because he was not aware that the issues of

parenting time and child support would be argued at the change of custody hearing.

{¶28} The Ohio Supreme Court has yet to develop a definitive definition of

excusable neglect. However, it has described it in the negative stating, “the inaction of

a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for

the judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d

1102 (1996), quoting GTE Automatic Elec., Inc., 47 Ohio St.2d at 153, 351 N.E.2d 113.

{¶29} A temporary orders hearing was held on September 11, 2012. The full

hearing was held on November 7, 2012. There is no dispute Father was served with

notice of the November 7, 2012 hearing.

{¶30} Father had the opportunity to attend two hearings on Mother’s motion for

change of custody, but Father chose not to attend either hearing. Father’s basis for

excusable neglect is that he did not dispute the change of custody and he did not feel

he needed to attend the hearing giving custody of D.M. to Mother. Under the Supreme

Court’s definition of excusable neglect, we find Father’s actions could be found to be a

disregard of the judicial system. The trial court had continuing jurisdiction pursuant to

Civ.R. 75(J) to modify the parties’ custody arrangement and the trial court has

jurisdiction over any matter related to such motion, including modification of child

support. The modification of child support was related to the custodial proceedings.

Appellant had adequate notice of the motion and the opportunity to present evidence

but choose not to do so.
Licking County, Case No.13-CA-37 9

{¶31} We find no abuse of discretion for the trial court to deny Father’s motion to

vacate the magistrate’s decision. Father’s first Assignment of Error is overruled.

II., III.

{¶32} Father argues in his second and third Assignment of Error that the

magistrate and trial court overstepped their authority in assisting Mother present her

motion for modification of custody.

{¶33} Mother appeared pro se at the motion for modification hearing. Mother

was the only witness at the hearing. The record shows the magistrate, while on the

bench, questioned Mother during the hearing. The findings of fact were based on

Mother’s testimony. Father first argues Mother cannot rely upon her pro se status and

her ignorance of her burden of proof in presenting her case to the trial court. Father

next argues the magistrate breached her duty of impartiality by the nature and extent of

the assistance provided to Mother during the hearing.

{¶34} We agree pro se litigants are not to be granted leniency in court

proceedings simply because they choose to appear without counsel. “Pro se civil

litigants are bound by the same rules and procedures as those litigants who retain

counsel. They are not to be accorded greater rights and must accept the results of their

own mistakes and errors.” Meyers v. First Natl. Bank of Cincinnati, 3 Ohio App.3d 209,

210, 444 N.E.2d 412 (1st Dist.1981). Mother’s pro se appearance, however, does not

preclude the magistrate from asking questions of a witness during a hearing. “In the

absence of any showing of bias, prejudice, or prodding of a witness to elicit partisan

testimony, it will be presumed that the trial court acted with impartiality [in propounding

to the witness questions from the bench] in attempting to ascertain a material fact or to
Licking County, Case No.13-CA-37 10

develop the truth.” State v. Baston, 85 Ohio St.3d 418, 426, 709 N.E.2d 128 (1999),

citing Jenkins v. Clark (1982), 7 Ohio App.3d 93, 98, 454 N.E.2d 541 (2nd Dist. 1982).

The record in this case does not show the magistrate, or the trial court in adopting the

magistrate’s decision, acted with bias, prejudice, or prodding of the witness to elicit

partisan testimony. If Father would have appeared at the hearing, he could have

objected to the magistrate’s line of questioning.

{¶35} Father’s second and third Assignments of Error are overruled.

CONCLUSION

{¶36} The three Assignments of Error of Plaintiff-Appellant Mark McCandlish, Jr.

are overruled.

{¶37} The judgment of the Licking County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Wise, J., concur.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE