[Cite as In re K.D.W., 2017-Ohio-1280.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104273
IN RE: K.D.W.
A Minor Child
[Appeal By A.W., Grandmother]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU 15107299
BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: April 6, 2017
ATTORNEY FOR APPELLANT
John V. Heutsche
John V. Heutsche Co., L.P.A.
Hoyt Block Building, Suite 220
700 West St. Clair Avenue
Cleveland, Ohio 44113-1273
ATTORNEYS FOR APPELLEE
For Father
Oscar Trivers
Trivers & Dickerson, L.L.C.
8608 Quincy Avenue, Up
Cleveland, Ohio 44106
For CCDCFS
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Michelle A. Myers
Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga County Department of
Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115
For CJFS
BY: Anthony R. Beery
Assistant Prosecuting Attorney
Cuyahoga Job and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144
Guardian Ad Litem
Pamela A. Hawkins
P.O. Box 43101
Richmond Hts., Ohio 44143
EILEEN T. GALLAGHER, J.:
{¶1} Appellant, A.W., K.D.W’s maternal grandmother, appeals an order of the
Cuyahoga County Juvenile Court that awarded legal custody of K.D.W., a minor child, to
his father (“Father”). A.W. raises two assignments of error:
1. The trial court committed prejudicial error to A.W. by approving the
magistrate’s decision designating [Father] “residential parent legal
custodian,” when the evidence established that such designation is against
the child’s best interests.
2. The trial court committed error prejudicial to A.W. when it approved
the magistrate’s decision without allowing A.W. the requisite 30 days to file
the transcripts of proceedings supporting her objections.
{¶2} We find merit to the appeal, reverse the trial court’s judgment, and remand
the case to the trial court to conduct an independent review of the magistrate’s decision.
I. Facts and Procedural History
{¶3} K.D.W. was born in March 2005 and lived with his mother, half-siblings, and
maternal grandmother, A.W. In May 2015, K.D.W.’s mother was murdered.
Consequently, A.W. filed an application for legal custody of K.D.W. and his
half-siblings. In response to A.W.’s application, Father filed a motion to modify
custody, also seeking custody of K.D.W.
{¶4} The case proceeded to a trial before a magistrate. After hearing the
evidence, the magistrate issued a decision designating Father as the residential parent and
legal custodian of K.D.W. A.W. filed timely objections to the magistrate’s decision and
requested a trial transcript. The trial court granted her leave to file the transcript, but
adopted the magistrate’s decision the following day before the transcript could be
prepared and filed. A.W. now appeals the trial court’s judgment.
II. Law and Analysis
{¶5} A trial court has broad discretion in custody proceedings. Davis v.
Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.
We, therefore, will not disturb a trial court’s custody decision absent an abuse of
discretion.
{¶6} In the first assignment of error, A.W. argues the trial court erred in
designating Father as K.D.W.’s residential parent and legal custodian because the
evidence established that custody with Father was not in K.D.W.’s best interests. In the
second assignment of error, A.W. argues the trial court erred in adopting the magistrate’s
decision without allowing 30 days to file the transcript of the proceedings. In both
assigned errors, A.W. contends the trial court failed to conduct a de novo review of the
facts and an independent analysis of the issues before adopting the magistrate’s decision.
A.W. asserts the trial court could not have conducted an independent review of the
magistrate’s decision because the magistrate’s decision “contains NO facts,” and the trial
court adopted the magistrate’s decision without reviewing the trial transcript.
(Appellant’s brief at 9.)
{¶7} Juv.R. 40(D)(3)(ii), which governs magistrate’s decisions, provides, in
relevant part:
[A] magistrate’s decision may be general unless findings of fact and
conclusions of law are timely requested by the party or otherwise required
by law. A request for findings of fact and conclusions of law shall be
made before entry of a magistrate’s decision or within seven days after the
filing of the magistrate’s decision.
Neither party in this case requested findings of fact or conclusions of law. Therefore, the
magistrate was not required to make specific findings of fact in her decision.
{¶8} However, when ruling on objections to a magistrate’s decision, a trial court is
required to conduct an independent review of the case. In re S.R.L., 8th Dist. Cuyahoga
No. 102797, 2015-Ohio-5227, ¶ 49. Juv.R. 40(D)(4)(d) provides, in relevant part:
If one or more objections to a magistrate’s decision are timely filed, the
court shall rule on those objections. In ruling on objections, the court shall
undertake an independent review as to the objected matters to ascertain that
the magistrate has properly determined the factual issues and appropriately
applied the law.
See also In re J.W., 8th Dist. Cuyahoga No. 98607, 2013-Ohio-268, ¶ 8 (reversing
juvenile court’s judgment where the court failed to conduct independent review of
magistrate’s order).
{¶9} In In re H.R.K., 8th Dist. Cuyahoga No. 97780, 2012-Ohio-4054, ¶ 12, this
court held that “it is an abuse of discretion to adopt a magistrate’s decision over an
objection to factual findings prior to its receipt of a timely requested transcript or other
materials necessary to conduct an independent review of the matter.” See also Savioli v.
Savioli, 99 Ohio App.3d 69, 649 N.E.2d 1295 (8th Dist.1994) (“Trial court abuses its
discretion when it rules on a referee’s report without the benefit of a transcript.”).
{¶10} Similarly, In re R.C., 8th Dist. Cuyahoga No. 96396, 2011-Ohio-4641, ¶ 8,
this court held that the trial court failed to conduct an independent review of the
magistrate’s decision designating father as the residential parent and legal custodian
because the trial court overruled mother’s objections to the magistrate’s decision on the
same day it granted her motion for a transcript of the proceedings before the magistrate.
Id. at ¶ 8. In reaching this conclusion, we explained:
[T]he court must conduct “a de novo review of any issue of fact or law that
a magistrate has determined when an appropriate objection is timely filed.
The trial court may not properly defer to the magistrate in the exercise of
the trial court’s de novo review. The magistrate is a subordinate officer of
the trial court, not an independent officer performing a separate function.”
Id. at ¶ 11, quoting Knauer v. Keener, 143 Ohio App.3d 789, 793-794, 758 N.E.2d 1234
(2d Dist.2001).
{¶11} The magistrate filed her decision in this case on February 2, 2016. In her
objections to the magistrate’s decision, A.W. challenged the magistrate’s conclusion that
designating Father as the residential parent and legal custodian of K.D.W. was in the
child’s best interests. In support of her objections, A.W. requested a trial transcript and
listed several facts not discussed in the magistrate’s decision, including the Guardian Ad
Litem’s recommendation that the court should award legal custody of K.D.W. to A.W.
{¶12} As previously stated, the trial court granted A.W. leave to file the transcript,
but adopted the magistrate’s decision the following day, without reviewing the transcript,
which had yet to be filed. It was impossible for the trial court to independently review
the magistrate’s decision and A.W.’s objections without reviewing the transcript,
especially since the magistrate’s decision does not discuss any facts or provide any legal
analysis.
{¶13} Therefore, the trial court abused its discretion in adopting the magistrate’s
decision without conducting an independent review as required by Juv.R. 40(D)(4).
Accordingly, the second assignment of error is sustained. However, because the trial
court lacked all of the necessary evidence to determine whether awarding custody to
Father is in K.D.W.’s best interests, the first assignment of error is overruled solely on
grounds that it is premature.
{¶14} Judgment reversed. Case is remanded to the trial court for an independent
review of the magistrate’s decision and to determine whether awarding custody to Father
or A.W. would serve K.D.W.’s best interests.
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 the Cuyahoga County Common Pleas
Court, Juvenile Division, 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.
EILEEN T. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR