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Leonard Nyamusevya v. Consolata Nkurunziza

October 13, 2011

LEONARD NYAMUSEVYA, PLAINTIFF-APPELLANT,
v.
CONSOLATA NKURUNZIZA,
DEFENDANT-APPELLEE.



APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations. (C.P.C. No. 09DR-05-1832)

The opinion of the court was delivered by: French, J.

Cite as Nyamusevya v. Nkurunziza,

(REGULAR CALENDAR)

DECISION

{¶1} Plaintiff-appellant, Leonard Nyamusevya ("appellant"), appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, which issued a decision ordering appellant to pay a portion of the fees of attorney Kerry L. McCormick. McCormick was appointed as a guardian ad litem ("GAL") for appellant's children in the contested divorce action between appellant and his ex-wife, defendant-appellee, Consolata Nkurunziza ("appellee"). For the following reasons, we affirm.

{¶2} On October 15, 2009, appellee filed a motion for the court to appoint a GAL to represent the interests of the parties' three children. The matter was set for hearing on November 17, 2009. On that date, the court prepared, and counsel for each party signed, a form entry appointing McCormick as the GAL for the children. The form entry indicates that, pursuant to Rule 15 of the local rules of the Franklin County Court of Common Pleas, Division of Domestic Relations ("Loc.R. 15") and it appearing to the court that the best interest of minors would be served and protected by making them parties to the action and appointing a GAL, the court appointed McCormick. The court identified the children by name, but did not check the boxes on the entry that would have designated them as parties. The entry ordered each party to deposit $500 into a trust account for purposes of paying McCormick. Although the specific box was not checked, the entry states that the court could order additional sums, upon motion by the GAL.

{¶3} On March 24, 2010, McCormick filed a motion requesting an order of interim fees. Neither party filed an objection to McCormick's motion. On April 15, 2010, the court filed an order granting the fees and ordering an additional deposit by the parties.

{¶4} On April 20, 2010, appellant moved to set aside the April 15 order.

Although appellant's motion was untimely, in an order dated August 12, 2010, the court remanded the matter to the magistrate for reconsideration and gave the parties an opportunity to file objections to McCormick's motion for fees. Appellant filed objections on August 23.

{¶5} On September 1, 2010, the magistrate issued an order setting a hearing for October 21, 2010, and outlining the requirements for submitting "an affidavit in support of his and her position" on the motion filed by McCormick, who by this time had withdrawn as GAL. The magistrate ordered the affidavits to be filed by October 14, 2010, and stated that anyone who failed to meet that deadline would be deemed to have waived the opportunity to submit evidence. Appellant and McCormick each filed affidavits on October 14, 2010. Appellant filed a supplemental affidavit on October 21, 2010, just before the parties appeared before the magistrate for a hearing.

{¶6} On October 26, 2010, the magistrate issued a decision that addressed and rejected appellant's arguments. The magistrate refused to consider appellant's supplemental affidavit, but, in effect, considered the substance of all of appellant's objections to McCormick's motion. The magistrate granted McCormick's motion for fees and ordered appellant to pay $540.97 as his contribution to those fees.

{¶7} Appellant objected to the magistrate's order. In a decision filed on January 13, 2011, the trial court denied appellant's objections, which the court interpreted as a motion to set aside the magistrate's order. The court affirmed and adopted the magistrate's order for appellant to pay $540.97.

{¶8} Appellant filed a timely appeal, and he raises the following assignments of error:

[I.] The trial court abused its discretion in granting the GAL's motion for interim fees as the children were never made parties to the action divesting the court of jurisdiction over them, prohibiting the appointment of a GAL ...


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