[Cite as In re B.B., 2011-Ohio-2928.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95872
IN RE: B.B.
A Minor Child
Appeal by Mother
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU 04110521
BEFORE: Boyle, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEY FOR APPELLANT MOTHER
George W. MacDonald
848 Rockefeller Building
614 Superior Avenue, N.W.
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE FATHER
Kenneth K. McElroy
10205 Eliot Avenue, Suite 1
Cleveland, Ohio 44104
GUARDIAN AD LITEM
Christopher R. Lenahan
2035 Crocker Road
Westlake, Ohio 44145
MARY J. BOYLE, P.J.:
{¶ 1} Appellant T.B.-P.1 (“mother”) appeals the trial court’s judgment
adopting the magistrate’s decision, overruling her objections, and granting
appellee A.L.’s (“father”) motion to modify custody of their minor daughter,
B.B. She raises a single assignment of error:
{¶ 2} “The trial court erred in approving and entering judgment on a
magistrate’s decision before a transcript could be obtained.”
The parties are referred to by their initials or title in accordance with this court’s
1
established policy regarding non-disclosure of identities in juvenile cases.
{¶ 3} Finding merit to the appeal, we reverse and remand for further
proceedings.
Procedural History and Facts
{¶ 4} On March 24, 2010, father filed a motion to modify custody,
seeking to be named the primary residential parent of B.B. Father alleged
that the living conditions in the mother’s home had changed to the detriment
of B.B., that mother was failing to ensure that B.B. attended school, and that
mother was not complying with the court’s visitation order. A hearing was
held before a magistrate on September 2, 2010. Following the hearing, the
magistrate issued her written decision on September 8, 2010, granting the
father’s motion and designating him as the primary residential parent and
legal custodian. Nine days later, mother, pro se, timely filed her objections
on September 17, 2010, raising issues with some of the magistrate’s factual
findings. Four days after filing her objections, on September 21, 2010,
mother filed two additional motions: (1) a request of the transcript of
proceedings at the state’s cost; and (2) leave to file supplemental objections
once the transcript was ready. The following day, on September 22, 2010,
the trial court overruled the mother’s objections and adopted the magistrate’s
decision. The trial court also issued a more detailed judgment entry on
September 23, 2010, adopting the magistrate’s decision and setting forth its
specific reasons for doing so.
{¶ 5} On September 24, 2010, the magistrate ruled that mother’s
motions for the preparation of the transcript at state’s costs and leave to file
supplemental objections were moot because the trial court had already
overruled the objections.
{¶ 6} Mother appeals, raising the following sole assignment of error:
{¶ 7} “The trial court erred in approving and entering judgment on a
magistrate’s decision before a transcript could be obtained.”
Civ.R. 53 — Transcript
{¶ 8} Mother argues that the trial court erred in ruling on her
objections prior to reviewing the transcript when mother had specifically filed
a request for the transcript within the governing time period. She further
contends that her objections sufficiently raised a manifest weight of the
evidence challenge, and therefore the trial court abused its discretion in
overruling her objections without first reviewing the transcript. We agree.
{¶ 9} Civ.R. 53 governs the procedure for filing objections to a
magistrate’s decision. Relevant to this appeal, Civ.R. 53(D)(3)(b)(iii) provides
that “[t]he objecting party shall file the transcript or affidavit with the court
within thirty days after filing objections unless the court extends the time in
writing for preparation of the transcript or other good cause. If a party files
timely objections prior to the date on which a transcript is prepared, the party
may seek leave of court to supplement the objections.” Thus, under this
provision, mother had thirty days to file the transcript in support of her
objections. The trial court, however, adopted the magistrate’s decision on
September 22, 2010 and later found mother’s request for the transcript to be
moot prior to the expiration of the thirty days. We find this to be erroneous.
{¶ 10} In addressing this same issue, Ohio appellate courts have
repeatedly recognized that a trial court errs in ruling on a party’s objections
to a magistrate’s decision without allotting the party “the requisite
opportunity to obtain transcripts.” Haverdick v. Haverdick, 11th Dist. No.
2010-T-0040, 2010-Ohio-6256, ¶17; see, also, In re N.L., 11th Dist. No.
2009-T-0019, 2011-Ohio-1010, ¶18; Lincoln v. Rush Expediting, Inc., 2d Dist.
No. 23847, 2010-Ohio-5286, ¶9-10; Black v. Brewer, 178 Ohio App.3d 113,
117, 2008-Ohio-4365, 897 N.E.2d 163, ¶26. Here, despite the fact that
mother specifically requested the transcript of the hearing and specifically
sought leave to supplement her objections after receiving the transcript, the
trial court nevertheless overruled her objections five days after they were
filed. As recognized above, such action directly contravenes the time allotted
under Civ.R. 53(D)(3)(b)(iii).
{¶ 11} While we recognize that mother is not automatically entitled to a
copy of the transcript at state’s expense and that the decision to grant
mother’s motion rests within the discretion of the trial court, we note that
mother also separately requested that a transcript be prepared. Thus, even
if the trial court intended to deny mother’s request to have the transcript
prepared at state’s expense, the trial court should have provided mother
notice of its ruling and an opportunity to obtain the transcript at her own
expense. Indeed, because the trial court was alerted that mother intended to
obtain the transcript to support her objections, it should not have ruled on the
objections until the expiration of the thirty days.
{¶ 12} Further, mother’s objections raise issues with the magistrate’s
factual findings. Under these circumstances, “a trial court abuses its
discretion when it rules on objections to a magistrate’s report without the
benefit of a transcript.” In re Wheeler, 5th Dist. No. CT2004-0037,
2005-Ohio-220, citing In re Moorehead (1991), 75 Ohio App.3d 711, 600
N.E.2d 778. Thus, given that mother specifically challenged some of the
magistrate’s findings and further contested the magistrate’s stated reasons
for granting father’s motion, a review of the transcript was necessary to
dispose of mother’s objections. See Haverdick, supra; In re N.L., supra.
{¶ 13} The sole assignment of error is sustained.
Judgment reversed and case remanded for further proceedings
consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, J., and
KATHLEEN ANN KEOUGH, J., CONCUR