[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