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Ellison v. Ellison

Court of Appeals of Ohio, Fourth District

August 22, 2013

MICAH ELLISON, Plaintiff-Appellee,
v.
CRYSTAL ELLISON, Defendant-Appellant.

Justin W. Skaggs, Skaggs Law Office, Jackson, Ohio, for Intervenor/Appellant, Michael Nelson.

Frederick C. Fisher, Jr., McCown & Fisher, LPA, Ironton, Ohio, for Plaintiff/Appellee, Micah Ellison.

Warren Morford, Jr., South Point, Ohio, for Defendant/Appellant, Crystal Ellison.

Courtney Zolman-Walters, South Point, Ohio, Guardian Ad Litem. [1]

DECISION AND JUDGMENT ENTRY

MATTHEW W. MCFARLAND PRESIDING JUDGE

(¶1} Michael Nelson, Appellant herein and Intervenor below, appeals from the judgment of the Lawrence County Court of Common Pleas adopting the magistrate's decision granting Micah and Crystal Ellison a divorce, and naming Micah Ellison as the residential parent of K.E.[2] Appellant's intervention in the case below was based upon his assertion that he, rather than Micah Ellison, was the biological father of K.E.. On appeal, Appellant contends that 1) the trial court erred and denied him due process when it failed to permit him to participate in the final hearing, where he appeared and asserted his desire to participate; and 2) that the trial court erred by failing to serve him with a copy of the final appealable order.

(¶2} Because the record indicates that Appellant was provided proper notice of the final hearing, appeared at the hearing, and was given the opportunity to present evidence but declined, we cannot conclude that the trial court prohibited him from participating. Thus, we find no merit to Appellant's first assignment of error and therefore it is overruled.

(¶3} However, because we conclude that the trial court erred in failing to serve Appellant with a copy of the magistrate's decision, which decision also lacked the required language required under Civ.R. 53, we must remand this matter to the trial court in order for the magistrate to prepare a decision in the proper form, and to provide the necessary service upon Appellant. Thus, Appellant's second assignment of error is sustained. Accordingly, the decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.

FACTS

(¶4} Appellees, Micah and Crystal Ellison, were married on May 30, 2002, and three children were born during the marriage. Micah Ellison filed a complaint for a divorce on August 27, 2010, alleging as part of the divorce filings that he was the natural parent of all three children born during the parties' marriage, including the third and youngest child, K.E., who was born on January 16, 2008. The parties initially were granted shared parenting of the children, however, that arrangement soon proved problematic and was followed with a series of contempt and emergency custody motions.

(¶5} On January 23, 2012, on the morning of the scheduled divorce hearing, Michael Nelson filed a motion to intervene in the matter, claiming that DNA testing had confirmed that he was the biological father of K.E. A magistrate's decision filed on January 31, 2012, found Nelson's motion to be well taken and ordered Nelson, Crystal Ellison, and K.E. to submit to DNA testing at the Lawrence County Department of Job and Family Services. Although Micah Ellison objected to the magistrate's decision to allow Nelson to intervene, the trial court, by entry dated May 10, 2012, found Nelson had grounds to intervene and again ordered DNA testing.

(¶6} The divorce proceedings came on for final hearing again on June 28th and 29th, 2012. Nelson was provided notice of the scheduled hearing and actually appeared at the hearing, albeit without counsel. The record indicates that Nelson's attorney was not present at the hearing as he was on vacation. As will be discussed more fully, infra, the trial court inquired as to whether Nelson intended to ask questions during the proceeding to which Nelson responded in the negative. The court gave Nelson the option to stay or leave, after which it appears Nelson left. Noting that Nelson's counsel had not contacted the court regarding obtaining a continuance, the court proceeded to conduct the hearing.

(¶7} A magistrate's decision was issued on August 20, 2012. The record reflects that neither Nelson nor his counsel were served with a copy of the decision. As such, Nelson did not file objections to the magistrate's decision. A final, appealable order was subsequently filed by the trial court on October 22, 2012, followed by an amended final, appealable order on October 31, 2012. Nelson was not served with either of these orders. Nonetheless, Nelson filed a timely appeal from the amended final order, setting forth the following assignments of error for our review.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT ERRED BY FAILING TO PERMIT APPELLANT TO PARTICIPATE IN THE FINAL HEARING WHERE APPELLANT APPEARED AND ASSERTED HIS DESIRE TO PARTICIPATE DENYING APPELLANT-NELSON DUE PROCESS OF LAW IN CONTRAVENTION OF THE 14THAMENDMENT TO THE UNITED STATES ...

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