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Makruski v. Makruski

Court of Appeals of Ohio, Ninth District, Lorain

March 26, 2018

DEANA MAKRUSKI Appellant
v.
DANIEL MAKRUSKI Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13 DU 077323

          APPEARANCES: JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

          WAYNE NICOL, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE

         {¶1} Plaintiff-Appellant, Deanna Makruski ("Mother"), appeals the judgment of the Lorain County Court of Common Pleas, Domestic Relations Division denying, in part, her objection to a magistrate's decision. For the reasons that follow, this Court affirms.

         I.

         {¶2} Mother and Defendant-Appellee, Daniel Makruski ("Father") were divorced on August 18, 2014, pursuant to a decree of divorce. Mother was therein designated as the residential parent and legal custodian of the parties' two minor children, subject to Father's parenting time. On August 18, 2016, Father filed a motion to modify his parenting time requesting to increase his visitation with the parties' youngest child prior to his pending military deployment. The parties' oldest child reached the age of majority prior to Father's motion.

         {¶3} A magistrate held an expedited hearing on September 29, 2016, and conducted an in camera interview of the minor child on October 3, 2016. In a decision filed October 7, 2016, the magistrate determined that a temporary order of modified parenting time was in the best interests of the minor child. Accordingly, the magistrate granted Father's motion to modify and ordered that "Father shall have temporary modified parenting time order with the minor child for the period prior to his deployment" as set forth in an exhibit attached thereto. The magistrate further ordered that Father was "to have the child during the entire duration of any leave during deployment he may take and is able to return to Ohio to exercise parenting time pursuant to [R.C.] 3109.051(M)." Finally, the order stated that upon Father's return from deployment, the temporary modification would expire and the prior court order of visitation would resume. The trial court adopted the magistrate's decision that same day and entered judgment accordingly.

         {¶4} Mother thereafter filed an objection to the magistrate's decision and an objection to the trial court's adoption of the magistrate's decision, arguing, inter alia, that "[n]either the magistrate nor [the trial] court had the authority to modify the visitation schedule as it did" because Father's deployment could not serve as a change in circumstances. On January 3, 2017, the trial court concluded that since the legislature had not offered a definition of the term "duration of active military service" and Father's "actual deployment will occur shortly", Mother's objection with regard to the visitation schedule was moot. Accordingly, the trial court denied Mother's objections as it related to the temporary modification order of parenting time.

         {¶5} Mother filed this timely appeal, raising three assignments of error for our review.

         II.

         Assignment of Error I

         The trial court erred when it overruled Mother's objections to the magistrate's order increasing Father's parenting time pursuant to [R.C. 3190.04(I)] and [R.C. 3109.051(M)(1)(b).

          Assignme ...


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