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Morrison v. Morrison

Court of Appeals of Ohio, Ninth District, Summit

June 13, 2018

BRANDY MORRISON Appellant
v.
CHAD MORRISON, SR. Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2011-11-3413

          BRANDY MORRISON, pro se, Appellant.

          JOSEPH A. KACYON and RACHEL L. SMICK, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE.

         {¶1} Brandy M. Morrison appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, entered on January 6, 2017. We affirm in part, and reverse and remand in part.

         I.

         {¶2} In November 2011, Brandy M. Morrison filed a complaint for divorce against Chad J. Morrison, Sr., and on March 19, 2013, a magistrate's decision was issued and a decree of divorce was entered by the trial court. Ms. Morrison filed objections, which were overruled by the trial court in October 2013, and subsequently appealed to this Court. On May 28, 2014, we issued a decision affirming in part and reversing in part, and remanded to the trial court for further proceedings.

         {¶3} In June 2014, Ms. Morrison filed several post-decree motions, including a motion for modification of spousal support, which came before the magistrate for hearing. On September 17, 2014, the magistrate issued a decision which was adopted by the trial court, and Mr. Morrison subsequently filed an objection, arguing that the decision was entered in error because a hearing on remand from this Court had yet to take place.

         {¶4} On October 9, 2014, the hearing on remand was held before the magistrate, and a decision was issued and adopted by the trial court on December 26, 2014. In January 2015, Ms. Morrison filed her objections to the magistrate's decision, and two years later, on January 6, 2017, the trial court overruled Ms. Morrison's objections.

         {¶5} Ms. Morrison now appeals, raising four assignments of error, and Mr. Morrison has filed a cross-appeal, raising one assignment of error. These assignments of error have been reordered for the purposes of our review.

         II.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT ABUSED ITS DISCRE[T]ION BY NOT RULING ON APPELLANT[']S ORAL MOTION FOR A CONTINUANCE AT TRIAL.

         {¶6} In her first assignment of error, Ms. Morrison argues the trial court abused its discretion in overruling her objection to the magistrate's failure to rule on her motion for a continuance at the beginning of trial. We disagree.

         {¶7} "Generally, the decision to adopt, reject, or modify a magistrate's decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion." Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd, 66 Ohio St.3d 619, 621 (1993).

         {¶8} This Court's decision of May 28, 2014, reversed in part and remanded the order of the trial court, stating: "Pursuant to R.C. 3109.04(C), the trial court was required to determine whether it was in the best interest of the children to name Husband the residential parent and to make specific written findings of fact to support its determination." On October 9, 2014, a hearing was held before the magistrate, who stated at the commencement of the hearing:

The matter has been on remand from the Court of Appeals, 9th District[, ] for whether it was the best interest of the children to name husband the residential parent under 3109(F); whether either party has previously been convicted or plead guilty to any criminal offense involving the act that resulted in a child being neglected; * * * [whether] either party has been convicted of or [plead] guilty to a violation of [R.C.]2919.25 pursuant to [R.C] 3109.04; [and] the issue of the wife's income * * *. That's what we're here for.

         Ms. Morrison proceeded to ask for a continuance of the hearing "on the grounds that [the court had] not presented the finding in facts [sic] pertaining to custody determination in the final Divorce Decree regarding [R.C] 3109.04(C) as the District Court of Appeals remanded these findings be made." The magistrate responded that the issues before the court were whether it was in the best interests of the children for Mr. Morrison to be named the residential parent and whether either parent had been convicted of or plead guilty to a criminal offense. The magistrate then went forward with the hearing without expressly ruling on Ms. Morrison's motion to continue.

         {¶9} The magistrate stated at the outset that the hearing was in response to this Court's directive remanding the case for the trial court to make findings pursuant to R.C. 3109.04. Correspondingly, findings of fact from the October 9, 2014, hearing were set forth in the magistrate's decision entered on December 26, 2014. Ms. Morrison fails to show how going forward with the hearing prior to the trial court making findings of fact prejudiced her. See Civ.R.61. We conclude the trial court was not unreasonable, arbitrary, or unconscionable and did not abuse its discretion.

         {¶10} Ms. Morrison's first ...


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