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In re M.C.M.

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 5, 2018

IN RE: M.C.M. A Minor Child [Appeal By N.S., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. SU 16708879

          ATTORNEY FOR APPELLANT Gregory S. Costabile Buckley King, L.P.A.

          ATTORNEYS FOR APPELLEES For CJFS-OCSS Michael C. O'Malley Cuyahoga County Prosecutor Amy E. Guilford Terri M. Hammons-Brown Assistant Prosecuting Attorneys.

          For Father, B.M. Brandon G. Oliver.

          BEFORE: Boyle, P.J., Blackmon, J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, PRESIDING JUDGE.

         {¶1} Defendant-appellant, N.S. ("mother"), appeals the trial court's child support order concerning her daughter, M.C.M. (d.o.b. March 22, 2014). On appeal, mother raises three assignments of error:

1. The trial court committed reversible error when it failed to conduct an independent review of the Magistrate's Decision.
2. The trial court erred and abused its discretion in its determination of the annual income levels of the parties.
3.The trial court erred and abused its discretion in its determination of child support the father is to pay to the mother for the minor child.

         {¶2} Finding merit to mother's second and third assignments of error, we reverse and remand.

         Procedural History

         {¶3} Mother and plaintiff-appellee, B.M. ("father"), were never married. They lived together from the time of M.C.M.'s birth until they separated on February 1, 2016. Father established paternity through an acknowledgment of paternity and mutual agreement.

         {¶4} In June 2016, mother filed a complaint in juvenile court objecting to an administrative child support order issued by the Cuyahoga County Jobs and Family Services Office of Child Support Services (CJFS-OCSS). In her complaint, she argued that CJFS-OCSS did not properly determine father's income.

         {¶5} In March 2017, mother filed a motion for retroactive support in the juvenile court, requesting that the effective date of any child support order be February 1, 2016, the date that father and mother separated. The matter went before the juvenile court magistrate, and father and mother both testified as to their respective financial situations. In addition, both parties submitted a number of exhibits demonstrating their income for the previous few years, including tax returns, W-2 forms, and employment records.

         {¶6} The magistrate found that mother was "compensated well beyond her visible $10, 500.00 annual taxable salary" and, thus, voluntarily underemployed. The magistrate imputed a gross income of $30, 000 to mother. As for father, the magistrate averaged his annual income from 2014 through 2016, concluding that he had an average income of $62, 523. Based on those determinations, the magistrate ordered that father pay monthly child support in the amount of $594.75 plus a two percent fee when health insurance is provided and $558.45 when health insurance is not provided.

         {¶7} Both mother and father filed timely objections to the magistrate's decision, particularly contesting the magistrate's income determinations. In addition, after obtaining leave to do so, mother supplemented her objections upon completion of the trial transcript, again arguing that the magistrate's income determinations were improper.

         {¶8} After review of the magistrate's decision, the trial judge issued two judgment entries adopting the magistrate's order for child support. The first entry overruled mother's supplemental objections, which were identical to those she initially raised. The second entry overruled father's objections.

         {¶9} It is from this judgment that mother now appeals.

         Law and Analysis

         A. Independent Review

         {¶10} In her first assignment of error, mother argues that the juvenile court failed to independently review the magistrate's child support decision and order.

         {¶11} "In reviewing a magistrate's decision, a trial court does not sit in the same manner as an appellate court; rather, it must conduct an independent review of the facts and conclusions made by the magistrate." Haupt v. Haupt, 11th Dist. Geauga No. 2015-G-0049, 2017-Ohio-2719, ¶ 26, citing Phillips v. Phillips, 2014-Ohio-5439, 25 N.E.3d 371 (5th Dist). Juv.R. 40(D)(4)(d) provides that "the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence[.]" The trial court must decide "'whether the magistrate has properly determined the factual issues and appropriately applied the law, and, where the magistrate has failed to do so, the trial court must substitute its judgment for that of the magistrate.'" In re J.M.G., 8th Dist. Cuyahoga No. 98990, 2013-Ohio-2693, ¶ 22, quoting Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148, 2010-Ohio-4493. "An appellate court reviews a decision of a trial court adopting a magistrate's decision under an abuse-of-discretion standard." In re Estate of Haas, 10th Dist. Franklin No. 07AP-512, 2007-Ohio-7011, ¶ 14. Further, "a trial court's ruling on objections to a magistrate's decision will not be reversed absent an abuse of discretion." Gobel at ¶ 16, citing Remner v. Peshek, 7th Dist. Mahoning No. 97-C.A.-98, 1999 Ohio App. LEXIS 4802 (Sept. 30, 1999).

         {¶12} We presume that the trial court independently reviewed the magistrate's decision "unless the party asserting the error affirmatively shows otherwise." In re J.M.G. at ¶ 23, citing Hartt v. Munobe, 67 Ohio St.3d 3, 615 N.E.2d 617 (1993). The party asserting that the court did not independently review a magistrate's decision has the burden of affirmatively rebutting that presumption. Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, ¶ 23, citing Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153 (4th Dist.).

The "affirmative showing" required to rebut our general presumption requires "more than a mere inference"; it requires appellant to provide the reviewing court with specific facts demonstrating that the trial court failed to conduct an independent review of the magistrate's findings.

Id. at ¶ 25, quoting In re Taylor G., 6th Dist. Lucas No. L-05-1197, 2006-Ohio-1992.

         {¶13} In support of her allegation that the juvenile court failed to independently review the magistrate's decision, mother argues that the court's journal entry is a verbatim copy of the magistrate's decision, specifically pointing to the fact that the juvenile court's decision included a hearing date that already passed.

         {¶14} While the juvenile court's judgment entries did include a clerical error concerning a past hearing date, "the cutting and pasting of a magistrate's decision into a judgment entry does not show mere rubber-stamping." Marafiote v. Estate of Marafiote, 7th Dist. Mahoning No. 14 MA 0130, 2016-Ohio-4809, ¶ 32, citing Ramos v. Khawli,181 Ohio App.3d 176, 2009-Ohio-798, 908 N.E.2d 495 (7th Dist). Therefore, without additional rebutting evidence and constrained by the presumption of independent review, we find that ...


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