State ex rel. Thompson v. Spon

Lundberg Stratton, J.,

dissenting. I would find that the court of appeals erred in dismissing appellant’s complaint because it was neither frivolous nor obviously without merit. In addition, since there is no need for further evidence and argument to resolve this legal issue, I would issue the writ. Therefore, for the following reasons, I respectfully dissent.

First, R.C. 3109.04(C)’s requirement of written findings of fact applies to pretrial proceedings under Civ.R. 53(C)(3)(a) and 75(M). In this regard, R.C. 3109.04(C)’s express language makes it applicable to “any proceeding” when the court allocates parental rights and responsibilities for the care of children. “[Cjourts do not have the authority to ignore the plain language of a statute under the guise of statutory interpretation or liberal or narrow construction.” State ex rel. Massie v. Gahanna-Jefferson Pub. Schools Bd. of Edn. (1996), 76 Ohio St.3d 584, 588, 669 N.E.2d 839, 843. The phrase “any proceeding” is not limited to proceedings involving a permanent allocation of parental rights and responsibilities for the care of children. Courts are not free to delete or insert *557words in interpreting an unambiguous statute. State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519, 521.

Second, insofar as R.C. 3109.04(C)’s written-findings requirement conflicts with the pertinent Rules of Civil Procedure, the statute controls because the findings requirement is substantive rather than procedural. See, e.g., State ex rel. Konoff v. Moon (1997), 79 Ohio St.3d 211, 212, 680 N.E.2d 989, 990; State ex rel. Papp v. James (1994), 69 Ohio St.3d 373, 378, 632 N.E.2d 889, 894; Boyer v. Boyer (1976), 46 Ohio St.2d 83, 75 O.O.2d 156, 346 N.E.2d 286.

Third, appeal of the magistrate’s pretrial order under Civ.R. 53(C)(3)(b)2 does not constitute an adequate remedy. See State ex rel. Kaylor v. Bruening (1997), 80 Ohio St.3d 142, 148, 684 N.E.2d 1228, 1233, quoting State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 178, 631 N.E.2d 119, 121. Without the written findings of, fact specified in R.C. 3109.04(C), appellant’s remedy under Civ.R. 53(C)(3)(b) is not meaningful because she will not be able to state her objections with particularity. See Konoff 79 Ohio St.3d at 212, 680 N.E.2d at 990.

Fourth, Judge Spon erroneously asserts that the magistrate has complied with the statutory findings requirement by citing the magistrate’s oral findings at the pretrial hearing. However, R.C. 3109.04(C) requires written, not oral, findings.

Fifth, the Thompson and Schoffner cases cited by the majority are not applicable because they addressed the applicability of R.C. 3109.04(B) to temporary orders and did not consider R.C. 3109.04(C)’s findings requirement, which was enacted following those cases.

Finally, issuance of a writ of mandamus advances the policy considerations set forth by appellant and amici curiae. “ ‘State statutes need to protect women and children during and alter the break-up of relationships because of their continuing, often heightened, vulnerability to violence.’ ” Felton v. Felton (1997), 79 Ohio St.3d 34, 41, 679 N.E.2d 672, 677, quoting Klein & Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law (1993), 21 Hofstra L.Rev. 801, 816.

Although these awards are “temporary,” they can last for a considerable time and are often decisive in the ultimate decision to award permanent custody. See, generally, 2 Sowald & Morgenstern, Domestic Relations Law (1997) 154, Section 25.30 (“Practitioners in this field are generally aware that if the time between the temporary order and the final hearing has been prolonged by the temporary *558residential parent’s counsel sufficiently, the status quo will likely prevail.”); cf., also, In re Murray (1990), 52 Ohio St.3d 155, 157-158, 556 N.E.2d 1169, 1172.

This case reflects the important policy considerations supporting the General Assembly’s selection of the words “any proceeding” in the text of R.C. 3109.04(C). Although the court had granted custody of Nicole and Cody to Christine Thompson when it issued the civil protection order against Christopher Thompson, nevertheless he was able to obtain an ex parte order in the subsequent divorce action naming him temporary legal custodian and residential parent of the children. When Christopher Thompson brought the children back to Ohio, a magistrate determined that it was in the best interests of the children for them to remain in Ohio with their father. With no findings of fact or conclusions of law issued in connection with that order, Christine Thompson’s ability to successfully challenge the magistrate’s findings was effectively weakened.

There are potentially harmful effects from the placement of these children in the custody of a convicted abuser. Every day that a child spends with a convicted abuser is critical and may cause irreversible damage. As of May 1998, when the briefs in this case were filed, the court had yet to conduct a final hearing on the matter and the temporary order of November 1997 remained in effect. Unfortunately, the reality is that a final hearing in these types of cases may not take place for months or even years. For these reasons, I believe the General Assembly intended the words “any proceeding” in R.C. 3109.04(C) also to apply to temporary orders.

Based on the foregoing, the court of appeals erred in dismissing appellant’s complaint and not issuing the requested writ. I would therefore reverse the judgment of the court of appeals and issue the writ. Because the majority does not do so, I respectfully dissent.

Resnick, J., concurs in the foregoing dissenting opinion.

. Civ.R. 53(C)(3)(b) provides that “[a]ny person may appeal to' the court from any order of a magistrate entered under division (C)(3)(a) of this rule by filing a motion to set the order aside, stating the party’s objections with particularity.”