[Cite as Cooper v. Cooper, 2014-Ohio-4991.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
NATASHA COOPER NKA FRILEY,
PLAINTIFF-APPELLANT, CASE NO. 9-13-62
v.
MICHAEL COOPER, II, OPINION
DEFENDANT-APPELLEE.
NATASHA COOPER NKA FRILEY,
PLAINTIFF-APPELLANT, CASE NO. 9-13-64
v.
MICHAEL COOPER, II, OPINION
DEFENDANT-APPELLEE.
Appeals from Marion County Common Pleas Court
Family Division
Trial Court No. 2005PC0248 and 2005PC0249
Judgments Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: November 10, 2014
APPEARANCES:
Jeff Ratliff for Appellant
Michael Anthony Cooper, II, Appellee
Case Nos. 9-13-62, 9-13-64
WILLAMOWSKI, P.J.
{¶1} This appeal concerns custody of two minor children of Plaintiff-
appellant, Natasha Cooper n.k.a. Natasha Friley (“Natasha”), and Defendant-
appellee, Michael Cooper (“Michael”). Natasha brings this consolidated appeal
from the judgments of the Court of Common Pleas for Marion County, Ohio,
Family Division, granting Michael’s Motion to Reallocate Parental Rights and
Responsibilities. For the reasons that follow, we affirm in part and reverse in part
the trial court’s judgments.
{¶2} On June 15, 2011, Natasha and Michael entered into a Shared
Parenting Plan, under which Natasha was designated “the residential parent for
school placement and registration purposes.” (R.1 at 60.) Michael was ordered to
pay child support. (Id.) On March 25, 2013, Michael filed a Motion to Reallocate
Parental Rights and Responsibilities. (R. at 71.) Following a hearing on the
matter before the magistrate of the trial court, the magistrate recommended
granting Michael’s motion, on August 6, 2013. (R. at 88.) The trial court adopted
the magistrate’s decision on August 23, 2013, thus terminating the shared
parenting plan, designating Michael as the residential parent and legal custodian of
the parties’ minor children, and ordering Natasha to pay child support. (R. at 89.)
{¶3} Natasha now appeals raising the following assignments of error.
1
The relevant pleadings are the same in the two trial court cases appealed here. Therefore, for simplicity,
we cite to the filings in the trial court case number 05-PC-248 only.
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Case Nos. 9-13-62, 9-13-64
ASSIGNMENT OF ERROR NUMBER ONE
The Magistrate failed to follow the requirements of Civ. R.
53(D)(3)(a)(iii), which states that a magistrate’s decision shall
indicate conspicuously that a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal
conclusion unless the party timely and specifically objects to that
factual finding or legal conclusion as required by Civ. R.
53(D)(3)(b).
ASSIGNMENT OF ERROR NUMBER TWO
The trial court failed to conduct a de novo independent review of
the Magistrate’s Decision dated August 6, 2013.
ASSIGNMENT OF ERROR NUMBER THREE
The trial court failed to appropriately advise Plaintiff-Appellant
of her right to proceed with an attorney at the final hearing, or
allow for a continuance in order to seek representation.
First Assignment of Error—
Compliance with Civ.R. 53(D)(3)(a)(iii)
{¶4} In the first assignment of error, Natasha challenges the magistrate’s
decision as defective due to noncompliance with Civ.R. 53(D)(3)(a)(iii), which
states:
A magistrate’s decision shall indicate conspicuously that a party
shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual finding
or legal conclusion as required by Civ.R. 53(D)(3)(b).
Civ.R. 53. The requirement that the magistrate’s decision includes the
“conspicuous” notice serves to warn the parties of the consequences of failing to
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Case Nos. 9-13-62, 9-13-64
file objections—bar from assigning errors to the magistrate’s findings and
conclusions on appeal. See State ex rel. Johnson v. Ryan, 127 Ohio St.3d 267,
2010-Ohio-5676, 939 N.E.2d 146, ¶ 3; Williams v. Ormsby, 9th Dist. Medina No.
09CA0080-M, 2010-Ohio-3666, ¶ 12.
{¶5} The decision of the magistrate in this case included the following
language with respect to the Civ.R. 53 notice requirement.
NOTICE OF RIGHT TO OBJECT TO DECISION OF
MAGISTRATE
You are hereby notified that pursuant to Ohio Civil Rule 53
(E)(2)2 you have the right to file and serve objections to the
Magistrate’s Decision within fourteen (14) days of the filing of the
Decision. If either party timely files objections, the other party may
file and serve objections within ten (10) days of the date on which
the first objections were filed, or within the time otherwise
prescribed by this rule, whichever period expires last. The objections
shall be considered a motion. Objections shall be specific and state
with particularity the grounds of the objection. Upon consideration
of the objections, the Court may adopt, reject, or modify the
Decision; hear additional evidence; return the Decision to the
Magistrate with instructions, or hear the matter itself.
(R. at 88, at 7.)
{¶6} Natasha asserts that the language employed by the magistrate in this
case is insufficient under Civ.R. 53(D)(3)(a)(iii). Her challenge, and thus, the
issue before us concerns the interpretation and application of a civil rule. See
2
Civ.R. 53 was amended in 2006, resulting in removal of subsection (E), which is now reorganized as part
of subsection (D). See Donofrio v. Whitman, 191 Ohio App.3d 727, 2010-Ohio-6406, 947 N.E.2d 715, ¶
41 (7th Dist.). Therefore, the magistrate’s Notice referred to a nonexistent subsection of Civ.R. 53.
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Case Nos. 9-13-62, 9-13-64
Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, ¶ 8. Therefore,
it presents a question of law, which we review de novo. Id.
{¶7} We agree with Natasha’s assertion that the language employed by the
magistrate in this case lacks the warning required by Civ.R. 53(D)(3)(a)(iii),
because although it informs Natasha about her right to file objections, it fails to
warn her of the consequences of the failure to file objections. Therefore, the
waiver language, required under Civ.R. 53(D)(3)(a)(iii), is lacking. See Larson at
¶ 14 (holding that the magistrate failed to comply with Civ.R. 53(D)(3)(a)(iii)
where its decision failed “to give the parties notice of the consequences of their
failure to object within fourteen days”); see also OSI Funding Corp. v. Huth, 5th
Dist. Tuscarawas No. 06AP120068, 2007-Ohio-5292, ¶ 19-29 (finding defective
the magistrate’s decision that lacked “the statutory waiver language as required by
Civ. R. 53(D)(3)(a)(iii)”).
{¶8} In Larson, we held that “[i]f a magistrate fails to provide the parties
with notice of the requirement to file objections, the aggrieved parties, at a
minimum, are relieved from Civ.R. 53(D)(3)(b)(iv)’s waiver rule and are
permitted to raise their arguments for the first time on appeal.” ¶ 14. But where,
as here, the aggrieved party “did not raise any arguments on appeal except for the
magistrate’s failure to abide by Civ.R. 53(D)(3)(a)(iii),” the appropriate remedy is
to reverse the trial court’s decision so that the party can have an opportunity to file
objections to the magistrate’s findings of fact and conclusions of law. Id.; see also
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Case Nos. 9-13-62, 9-13-64
Keller v. Keller, 9th Dist. Summit No. 25967, 2012-Ohio-4029, ¶ 7 (“In cases
where the magistrate’s decision does not notify the parties of need to file
objections, the appropriate remedy is for this court to reverse and remand the
matter to the trial court for the magistrate to prepare a decision which complies
with Civ.R. 53(D)(3)(a)(iii), giving the parties an opportunity to file timely
objections.”); OSI Funding Corp. at ¶ 28 (holding that “the absence of this
language from the Magistrate’s Decision warrants reversal of the trial court’s
approval and adoption of such”).
{¶9} Therefore, we sustain the first assignment of error and reverse the trial
court’s judgment so Natasha can have an opportunity to file objections to the
magistrate’s decision.
Second Assignment of Error—Independent Review
of the Magistrate’s Decision by the Trial Court
{¶10} In this assignment of error, Natasha alleges that “[t]he trial court
failed to conduct a de novo independent review of the Magistrate’s Decision dated
August 6, 2013.” (App’t Br. at 12.) We need not address Natasha’s claim at this
time, however, because in light of our holding in the first assignment of error, the
trial court’s judgment entry, reviewing and adopting the magistrate’s decision, is
vacated. This assignment of error is thus moot.
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Case Nos. 9-13-62, 9-13-64
Third Assignment of Error—
Natasha’s Request for Counsel
{¶11} In her last assignment of error, Natasha claims surprise and prejudice
stemming from the fact that the magistrate, or the trial court, did not inform her of
an opportunity to obtain an attorney to assist her in the matter. (App’t Br. at 17.)
Nevertheless, she admits that she “mistakenly thought she was able to represent
herself,” and only later “realized that she was not capable to do so.” (Reply Br.)
She further complains that the magistrate should have granted her continuance to
obtain an attorney when she stated, at the end of the hearing, “I feel like I need to
get me an attorney,” and “I would just like to have an attorney for this.” (See Tr.
at 142, 144.)
{¶12} Natasha cites no law in support of this assignment of error, while our
review of Ohio law weighs against her arguments. In Moore v. Moore, an
appellant argued that “the trial court did not ‘protect the integrity of the trial
process’ by permitting appellant to represent himself at trial without warning him
of the dangers of self-representation.” 10th Dist. Franklin No. 03AP-334, 2003-
Ohio-5579, ¶ 3. The Tenth District Court of Appeals noted that it was not aware
“of any obligation imposed on a trial court to warn a party in a civil case as to the
‘disadvantages’ and ‘pitfalls’ of proceeding pro se.” Id. at ¶ 5. Similarly, the
court was not aware “of any obligation imposed on a trial judge to appoint counsel
for a pro se litigant in a civil trial who fails or refuses to retain counsel.” Id. at ¶ 4.
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We are also not aware of any mandate that would require the magistrate or the trial
court in this case to inform Natasha “that [she] had an opportunity to have an
attorney present to represent her.” (See App’t Br. at 17.)
{¶13} Natasha was no stranger to the Family Court, having been involved
in proceedings over the parenting of her minor children since July 2005. (See R.
at 1, Compl.) Throughout that time, she has been represented by attorneys. (See.
e.g., R. at 19, Notice of Appearance of Counsel; R. at 60, Agreed J. Entry.)
Although Natasha was represented by an attorney in June 2011, when the parties
entered the shared parenting agreement (see R. at 60), she did not retain an
attorney for the most recent dispute, concerning Michael’s Motion to Reallocate
Parental Rights and Responsibilities.
{¶14} At the beginning of the hearing concerning Michael’s motion, the
magistrate asked Natasha, “Ms. Friley? You prepared to go forward here today?”
Natasha responded, “Yep.” (Tr. at 1.) The magistrate then explained,
I do need to—and I normally do when anyone represents themselves,
I just advise them that I’m required to follow the Rules of Evidence
and I need to—I am required to hold you to the same standard I
would if you were an attorney. So, I’ll try to help you out the best
that we can in terms of—of representing yourself. However, I
can’t—I can’t assist you. Do you understand that?
(Tr. at 2.) Natasha responded, “Okay.” (Id.) In light of these facts, we are unable
to find that Natasha was surprised or prejudiced by the magistrate’s failure to
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Case Nos. 9-13-62, 9-13-64
explain the right to be represented by an attorney at the final hearing concerning
reallocation of parental rights and responsibilities.
{¶15} At the very end of the hearing, after presentation of all the witnesses
had been concluded, and upon the magistrate’s question whether she wanted to
submit exhibits, Natasha remarked, “I feel like—I feel like I need to get me an
attorney.” (Tr. at 142.) After she rested her case, Natasha again remarked, “I
would just like to have an attorney for this--.” (Tr. at 144.) The magistrate
responded, “It’s—the Final Hearing’s today. We just had the Hearing.” (Id.)
Natasha asserts that her comments, made at the conclusion of the final hearing,
constituted a request for continuance and that the magistrate erred by denying the
continuance.
{¶16} Nevertheless,
[i]t is well established under Ohio law that the decision to grant or
deny a continuance lies within the sound discretion of the trial court.
Thus, the trial court’s final decision will not be reversed on appeal
absent an abuse of discretion. An abuse of discretion has been
defined as a decision that is unreasonable, arbitrary or
unconscionable, rather than a mere error in judgment.
Burton v. Burton, 132 Ohio App.3d 473, 475, 725 N.E.2d 359 (3d Dist.1999),
citing State v. Lorraine, 66 Ohio St.3d 414, 423, 613 N.E.2d 212 (1993), State v.
Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), and Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When reviewing the
magistrate’s decision on a motion for continuance we apply “a balancing test,
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Case Nos. 9-13-62, 9-13-64
weighing the trial court’s interest in controlling its own docket, including
facilitating the efficient dispensation of justice, versus the potential prejudice to
the moving party.” Id. at 476. There are several factors to be considered when
determining whether the decision to grant or deny a continuance was proper.
Those factors include: “the length of the delay requested; whether previous
continuances have been granted; the inconvenience to the parties, witnesses,
attorneys and the court; whether the request is reasonable or purposeful and
contrived to merely delay the proceedings; and whether the movant contributed to
the circumstances giving rise to the request.” Id. Natasha fails to point to any
factors that would favor reversal or show that the magistrate abused his discretion
in denying the “request for continuance” made at the conclusion of the hearing.
{¶17} Michael’s motion was filed on March 25, 2013. (R. at 71.) The final
hearing on this issue was initially scheduled for May 31, 2013, but upon Natasha’s
motion for continuance, filed on April 23, 2013, the hearing was rescheduled to
July 18, 2013. (See R. at 82, 84.) Thus, Natasha was aware of Michael’s filing in
April 2013, at the latest, when she filed her first request to continue, and she had
almost three months to retain counsel prior to the final hearing. Natasha does not
allege that she attempted to or desired to seek counsel at any time prior to the
conclusion of the hearing. At the beginning of the hearing, she stated that she was
prepared to proceed and did not express any concerns about a lack of
representation. Therefore, it appears to have been her conscious decision to
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proceed without counsel and as such, she had contributed to the circumstances of
which she now complains. Furthermore, the request made at the conclusion of the
hearing was not reasonable, considering that all the evidence had been presented
and the parties had already rested. Repeating the entire process would likely have
caused inconvenience upon the parties and the court.
{¶18} In Moore, the Tenth District Court of Appeals reviewed a similar
scenario, where the appellant chose to proceed pro se but, “after all of the evidence
had been presented,” the appellant “indicated he thought he may need an
attorney.” 10th Dist. Franklin No. 03AP-334, 2003-Ohio-5579, at ¶ 6. The court
of appeals held that such a request for continuance to obtain an attorney at the end
of the hearing “was untimely,” and the trial court did not err in denying it. Id. at ¶
8.
In the present case, appellant had over three weeks to obtain an
attorney and could have requested a continuance much earlier than
after the trial had concluded. His untimely request would have
greatly inconvenienced the parties, given the trial was already over
and all of the evidence had already been presented. Importantly, our
review of the record supports the proposition that appellant
voluntarily and with full knowledge proceeded to trial without an
attorney. We have no doubt that appellant was able to decide for
himself whether he wished to be represented, and he simply believed
he could competently proceed on his own. His realization that he
may have benefited from the assistance of an attorney came much
too late. Under these circumstances, appellant cannot complain at the
very late stages of the proceeding that he desired counsel.
Id. at ¶ 9, 11.
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Case Nos. 9-13-62, 9-13-64
{¶19} Based upon our review of the record and the case law on topic, we
cannot conclude that the magistrate abused his discretion in not granting
continuance upon Natasha’s “request” for an attorney made at the conclusion of
the final hearing on the matter. The third assignment of error is overruled.
Conclusion
{¶20} Having reviewed the arguments, the briefs, and the record in this
case, we find error prejudicial to Appellant in the particulars assigned and argued
in the first assignment of error. The judgments of the Court of Common Pleas for
Marion County, Ohio, Family Division, are therefore affirmed in part and reversed
in part. This matter is remanded to the trial court with instructions to cause the
magistrate’s decision to be reissued with the proper Civ.R . 53(D)(3)(a)(iii) waiver
language, allowing for Plaintiff-appellant to file any objections she may have
thereto.
Judgments Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW and PRESTON, J.J., concur.
/jlr
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