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In re E.M.M.

Court of Appeals of Ohio, Eleventh District, Trumbull

June 12, 2017

IN RE: E.M.M.

         Civil appeal from the Trumbull County Court of Common Pleas, Juvenile Division. Case No. 2013 JS 00109.

          Gary R. Rich, (For Appellee Wendy D. Torr).

          Christopher A. Maruca, The Maruca Law Firm, LLC, (For Appellant Michael E. Masich).

          Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., (Guardian ad litem).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Michael E. Masich, appeals from the May 9, 2016 order of the Trumbull County Court of Common Pleas, Juvenile Division, sustaining his objections to the magistrate's decision filed January 19, 2016. For the following reasons, the trial court's judgment is affirmed.

         {¶2} Appellant and appellee, Wendy D. Torr, are the natural parents of minor child E.M.M. (d.o.b. 9/5/2012); they were never married. Appellee notified appellant she planned to move to Florida with E.M.M. On July 30, 2014, appellant filed a complaint for allocation of parental rights and responsibilities, a request for shared parenting, and a request that the natural mother not remove the child from the court's jurisdiction pending final resolution of the proceedings. Appellee moved to Florida with E.M.M. on September 4, 2014.

         {¶3} A guardian ad litem was appointed, and the parties agreed to submit to mediation. On May 1, 2015, appellant filed a motion to adopt a shared parenting plan with a proposed shared parenting plan attached. Hearings on appellant's complaint were held on August 10, 2015, and December 9, 2015.

         {¶4} A magistrate's decision was filed on January 19, 2016. The magistrate found it in the child's best interest to remain in the custody of appellee. The magistrate denied appellant's request for shared parenting because of the distance between the parties. The magistrate found appellant should be entitled to the standard guidelines of visitation for long distance visitation, at a minimum, and also granted appellant two weeks of visitation with the child, to be exercised February 7, 2016, through February 21, 2016. The trial court entered an order on January 19, 2016, adopting the magistrate's decision.

         {¶5} On February 2, 2016, appellant filed an objection to the magistrate's decision of January 19, 2016, and also a request for a transcript of proceedings. Appellant took issue with the magistrate's allocation of visitation, stating:

Due to this abuse of discretion, said objections are being filed requesting that her honor review the transcript and the testimony of all parties which will show that even if the Court determined that father should not receive custody, there is no basis for limiting his amount of time with minor child to eight (8) weeks per year when the minor child is not yet of school age.
WHEREFORE, it is hereby father's request that his objections with respect to additional companionship be granted and this matter be remanded to the Magistrate for further hearing pursuant to the amount of companionship that should be exercised between father and the subject minor child. To provide father with this amount of limited time based upon the totality of the evidence presented is clearly an abuse of the Magistrate's discretion[.]

         {¶6} Although appellant made reference to his motion to adopt the shared parenting agreement in passing, he did not make specific objections to the portion of the magistrate's decision that recommended overruling his motion for custody and motion for shared parenting. Appellee filed a brief in opposition to the objection on May 3, 2016.

         {¶7} A transcript of the proceedings before the magistrate was filed on May 6, 2016. On May 9, 2016, the trial court entered a judgment order, sustaining appellant's objection to the magistrate's decision and remanding the matter to the magistrate "for further consideration of additional visitation in excess of the Court's Standard Long Distance Schedule and the GAL's recommendation for additional visitation." The court stayed all orders previously issued by the ...


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