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Egan v. Buchnowski

Court of Appeals of Ohio, Eleventh District, Lake

March 30, 2018

ERIC J. EGAN, Plaintiff-Appellee,
BRIANA BUCHNOWSKI, Defendant-Appellant.

          Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2016 CV 00944.

          John W. Shryock, John Shryock Co., (For Plaintiff-Appellee).

          Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., L.P.A., (For Defendant-Appellant).



         {¶1} Appellant, Briana Buchnowski ("mother), appeals the judgment of the Lake County Court of Common Pleas, Juvenile Division, adopting the magistrate's decision approving appellee's, Eric Egan's ("father's"), proposed shared parenting plan. At issue is whether the trial court abused its discretion in adopting the magistrate's decision. For the reasons that follow, we affirm.

         {¶2} On June 15, 2016, father filed a complaint requesting custody of or visitation with the minor child, L.B., then eight months old. On August 31, 2016, a pre-trial was held, at which father was granted interim parenting time with L.B. and was ordered to pay interim child support. On November 1, 2016, father filed a motion for shared parenting with an attached shared-parenting plan. On February 6, 2017, the case proceeded to trial before the magistrate on father's complaint and plan.

         {¶3} Since mother failed to timely file the hearing transcript in the trial court, the statement of facts that follows is limited to the magistrate's findings of fact.

         {¶4} Father and mother were never married. Father testified he is the biological father of the child; mother acknowledged father's paternity; and the magistrate found a parent-child relationship exists. The parents met while they were attending Kent State University, and mother gave birth to the child in October 2015.

         {¶5} L.B. has lived in Willoughby since November 2015. He lived with both parents from November 2015 until March 2016, when they ended their relationship. L.B. has primarily lived with mother in Willoughby since that time.

         {¶6} Mother is originally from Buffalo, New York. The child was born there and spent the first few weeks of his life there.

         {¶7} Mother testified her plan was to move back to Buffalo. She wants to return there "to have [her] family support."

         {¶8} Father has had consistent contact with the child since his birth. He takes the child to his medical appointments and otherwise attends to his needs.

         {¶9} L.B. is bonded with both his maternal and paternal families. Mother earns $41, 000/year and father earns $39, 500/year. Mother pays for the child's health insurance through her employer. The parties share the costs of the child's daycare, which is about $400/month.

         {¶10} Despite disagreements between the parents, the magistrate found they are able to work with one another. Each parent communicates and works with the other in the child's best interest.

         {¶11} The magistrate also engaged in an exhaustive analysis of the pertinent best-interest factors in R.C. 3109.04(F)(1) and the additional factors in R.C. 3109.04(F)(2) when shared parenting is involved.

         {¶12} Based on these findings, the magistrate found that father's proposed shared parenting plan was in the child's best interests and should be adopted with two modifications: First, in the original plan, both parties were designated the child's residential parent for school purposes, while under the modified plan, mother was to be designated the sole residential parent for school purposes. Second, the provision in father's original plan that any decision to enroll or change schools would be made only if the parties mutually agree was to be removed; thus, mother can enroll or change the child's school on her own.

         {¶13} The magistrate issued his decision on March 6, 2017. On March 17, 2017, mother filed objections to the magistrate's decision along with (1) a motion for extension of time to file supplemental objections and (2) a motion for extension of time to obtain the transcript. The trial court granted mother's motions, allowing her to file the transcript "no later than April 17, 2017" and her supplemental objections "no later than May 1, 2017." Mother failed to file a transcript or any supplemental objections.

         {¶14} On April 27, 2017, the trial court entered judgment overruling mother's objections (noting that mother was given until April 17, 2017 to file the transcript, but that she had failed to file the transcript or any further extension to file the transcript) and adopting the magistrate's decision in its entirety. In its entry, the trial court adopted father's shared parenting plan, which was filed on November 1, 2016, with the two foregoing modifications. After the court-ordered deadline for filing the transcript and after the court entered final judgment, mother filed the transcript of the magistrate's hearing.

         {¶15} Mother appeals the trial court's judgment, asserting four assignments of error. For her first, she alleges:

         {¶16} "The trial court erred as a matter of law and abused its discretion in failing to consider all relevant factors under R.C. 3109.04(F)."

         {¶17} While mother contends the magistrate (and thus the trial court) did not consider the statutory factors in R.C. 3109.04(F) in ruling on father's shared parenting plan, mother failed to raise this issue in her objections.

         {¶18} Juv.R. 40(D)(3)(ii) provides that "[a]n objection to a magistrate's decision shall be specific and state with particularity all grounds for the objection." Further, Juv.R. 40(D)(b)(iv), regarding waiver, provides that "a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion * * *." (Emphasis added.) By failing to object to the magistrate's decision on the ground that the magistrate did not consider the statutory factors, mother waived the right to assert this issue for the first time on appeal. In any event, even if we were to review the issue for plain error, no such error occurred because the magistrate (and the trial court) considered the statutory factors.

         {¶19} This court, in Brandt v. Brandt, 11th Dist. Geauga No. 2012-G-3064, 2012- Ohio-5932, set forth the standard of review in custody cases ...

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