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Hanak v. Bush

Court of Appeals of Ohio, Seventh District, Mahoning

June 9, 2017

SHELLY ANN HANAK PLAINTIFF-APPELLEE
v.
ZARYL GUY BUSH, et al. DEFENDANTS-APPELLANTS

         Civil Appeal from the Court of Common Pleas, Domestic Relations Division, of Mahoning County, Ohio Case No. 07 DR 713

          For Plaintiff-Appellee: Shelly Ann Hanak, Pro se

          For Defendant-Appellant: Zaryl Guy Bush, Pro se

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION

          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.

          {¶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 ...


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