[Cite as Hanak v. Bush, 2017-Ohio-4282.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SHELLY ANN HANAK ) CASE NO. 16 MA 0196
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ZARYL GUY BUSH, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, of
Mahoning County, Ohio
Case No. 07 DR 713
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Shelly Ann Hanak, Pro se
1817 Lemont Drive
Poland, Ohio 44514
For Defendant-Appellant: Zaryl Guy Bush, Pro se
#643-199
Lake Erie Correctional Institution
501 Thompson Rd
Conneaut, Ohio 44030
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 9, 2017
[Cite as Hanak v. Bush, 2017-Ohio-4282.]
WAITE, J.
{¶1} Appellant, Zaryl Guy Bush, appeals the decision of the Mahoning
County Common Pleas Court, Domestic Relations Division, to deny his motion
seeking to establish/modify parenting time. As Appellant failed to file timely
objections to the November 21, 2016, magistrate’s decision, Appellant’s assignment
of error is overruled and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} Appellant and Appellee, Shelly Ann Hanak, were divorced on June 24,
2008. The parties have two minor children born of the marriage who were seventeen
and sixteen years old at the time Appellant filed his motion. Appellant’s right to
parenting time was suspended by the trial court in a judgment entry dated May 24,
2013, and he had no parenting time with the children when he filed his motion.
{¶3} Appellant is incarcerated in the Lake Erie Correctional Institution,
serving a life sentence for murder of a minor child and for felony child endangerment.
Appellant filed his motion to establish/modify parenting time on September 9, 2016.
A hearing on that motion was held on November 17, 2016. Appellant made his
appearance by telephone. Testimony by both parties was elicited at the hearing.
During the hearing, Appellant asked the court to interview both children. The trial
court refused, noting that the children had undergone counseling as a result of their
father’s murder conviction. The court reasoned that requiring the children to be
interviewed about whether they wished to visit their father in prison could possibly
result in additional psychological harm.
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{¶4} In a magistrate’s decision dated November 21, 2016, Appellant’s
motion to establish/modify parenting time was denied. On November 25, 2016,
Appellant filed a pro se motion for preparation of a transcript at the state’s expense.
On December 1, 2016 this motion was also denied. The magistrate determined that
the court was not required to provide a transcript at public expense pursuant to In re
E.J., 12th Dist. No. CA2014-07-098, 2015-Ohio-731. On December 6, 2016, the trial
court issued a judgment entry adopting the decision of the magistrate and denying
Appellant’s motion. On December 7, 2016, Appellant filed objections to the
November 21, 2016 magistrate’s decision. The trial court issued a judgment entry on
December 14, 2016, denying Appellant’s objections to the magistrate’s decision as
untimely. Appellant filed his pro se appeal on December 28, 2016.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
INTERVIEW THE CHILDREN IN CHAMBERS, THE WISHES AND
CONCERNS OF THE CHILDREN AS EXPRESSED TO THE COURT
TO DETERMINE VISITAION [SIC].
{¶5} In his assignment of error, Appellant contends that the trial court erred
in not interviewing the minor children to ascertain their wishes regarding visitation
with Appellant.
{¶6} We note at the outset that Appellant did not file timely objections to the
November 21, 2016, magistrate’s decision. Civ.R. 53(D)(3)(b)(iv) provides:
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Waiver of right to assign adoption by court as error on appeal. Except
for a claim of plain error, 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 has objected to that
finding or conclusion as required by Civ. R. 53(D)(3)(b).
{¶7} Because Appellant failed to file timely objections to the magistrate’s
decision, we review Appellant’s assignment of error only for plain error. See R.G.
Real Estate Holding, Inc. v. Wagner, 2d Dist. No. 16737, 1998 WL 199628 (Apr. 24,
1998). The plain error doctrine originated as a criminal law concept. In applying the
doctrine of plain error to a civil case, reviewing courts must proceed with the utmost
caution, limiting the doctrine strictly to those extremely rare cases where exceptional
circumstances require its application to prevent a manifest miscarriage of justice, and
where the error complained of, if left uncorrected, would have a material adverse
effect on the character of, and public confidence in, judicial proceedings. State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
See also In re B.Z.D., 7th Dist. No. 15 JE 0021, 2016-Ohio-886, ¶ 32.
{¶8} Even under a plain error standard, our review here is impeded because
Appellant has failed to provide a written transcript of the hearing before the
magistrate. Pursuant to App.R. 9(B)(1), “it is the obligation of the appellant to ensure
that the proceedings the appellant considers necessary for inclusion in the record,
however those proceedings were recorded, are transcribed in a form that meets the
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specifications of App.R. 9(B)(6).” Absent a transcript of proceedings, we must
presume the regularity of the proceedings below. Knapp v. Edwards Laboratories, 61
Ohio St.2d 197, 400 N.E.2d 384 (1980).
{¶9} In its November 21, 2016, entry, the magistrate addressed the issue of
interviewing the children when detailing the statutory factors to be considered in
determining visitation issues:
The Court has not interviewed the children. Although Defendant/Zaryl
Bush stated in his testimony that he wants the Court to “see what the
children want” it is discretionary for the Court to interview children for a
motion to modify visitation. The Court does not find that the children
should be interviewed.
It has been difficult for the children to deal with the murder conviction
and subsequent incarceration of their father. They have had to undergo
counseling. It was particularly difficult for [the parties’ son]. The Court
does not want the children to have to submit to an interview with the
Court regarding whether they should have contact with Defendant/Zaryl
Bush. This could cause additional psychological harm. Plaintiff/Shelly
Hanak is in the best position to know whether the children should have
contact with Defendant/Zaryl Bush at this time.
(11/21/16 Mag. Dec., pp. 2-3.)
{¶10} R.C. 3109.051(C) provides that when a court is determining whether to
grant parenting time, it “shall consider any mediation report” and “shall consider all
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other relevant factors, including, but not limited to, all of the factors listed in division
(D).” The statute also allows that, “the court, in its discretion, may interview in
chambers any or all involved children regarding their wishes and concerns.” R.C.
3109.051(C). Contrary to other considerations, the plain language of the statute
provides that the interview Appellant demands is discretionary and not mandatory.
{¶11} The relevant statute clearly states that a court interview of the children
may be conducted, but that whether or not to conduct such an interview is a matter
left to the discretion of the court. For the reasons stated in its judgment entry, the
trial court here determined that subjecting the children to an interview would likely
cause more harm than good in light of the issues surrounding their father’s murder
conviction.
{¶12} Appellant’s failure to timely object to the magistrate’s decision
precludes appellate review for all but plain error. Appellant has not provided a
transcript of hearing in this matter. After our review of the record as submitted on
appeal, we conclude that this case does not present exceptional circumstances that
rise to the level of plain error. As Appellant has not demonstrated plain error exists,
his assignment of error is overruled. The judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.