[Cite as Bennett v. Bennett,

.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

: GEORGE BENNETT Plaintiff-Appellant : C.A. CASE NO. 11 CA 52

vs. : T.C. CASE NO. 09-DR-1176

: (Civil Appeal from JILL M. BENNETT Common Pleas Court, Defendant-Appellee : Domestic Relations Division)

. . . . . . . . .

O P I N I O N

Rendered on the 10th day of February, 2012.

. . . . . . . . .

Douglas W. Geyer, Atty. Reg. No. 0022738, 451 Upper Valley Pike, Springfield, OH 45504 Attorney for Plaintiff-Appellant

Jon Paul Rion, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P.O. Box 1262, Dayton, OH 45402 Attorney for Defendant-Appellee

. . . . . . . . .

GRADY, P.J.:

{¶ 1} This is an appeal from an “Entry” of the domestic

relations division of the court of common pleas filed in a divorce

action that overruled objections to a magistrate’s decision

granting a decree of divorce and approved and adopted the decision

as the court’s final order in the action. We find that the decision 2

the court entered does not comply with Civ.R. 54(A), and is

therefore not an order, judgment, or decree subject to appellate

review. The appeal will be dismissed and the case remanded for

further proceedings.

{¶ 2} George and Jill Bennett were married on July 10, 1999.

Two children were born of the marriage. George 1 commenced an

action on a complaint for divorce on December 3, 2009. (Dkt. 1.)

Jill filed an answer and counterclaim for divorce on December

4, 2009. (Dkt. 11.) The matter was referred to a magistrate for

hearings and a decision on the claims for relief pleaded in the

action.

{¶ 3} Following hearings, the magistrate on January 5, 2011

filed a comprehensive, fifty-one page decision in the form of a

decree of divorce, which the court made its interim order. (Dkt.

64.) Both parties filed objections to the decision. George filed

two objections concerning matters which are likewise the subject

of this appeal.

{¶ 4} George objected to the magistrate’s designation of Jill

as the residential parent and legal custodian of the parties’ two

minor children, instead of ordering shared parenting as George

had requested. George also objected to the magistrate’s

1 For clarity and convenience, the parties are identified by their first names. 3

determination that an award for personal injuries George was paid

is marital property, and an order dividing the proceeds of that

property with Jill accordingly.

{¶ 5} On June 28, 2011, the domestic relations court

journalized an “Entry” addressing the magistrate’s decision and

the parties’ objections. (Dkt. 82.) Concerning each objection,

and without further elaboration, the court stated that, following

an independent review, it disagreed with the contentions the

objections involved and found the objections not well-taken, and

therefore that the objections “shall be and herewith are

OVERRULED.” The court’s order concludes:

{¶ 6} “IT IS FURTHER ORDERED that the Magistrate’s Decision

filed in the within matter on January 5, 2011 is approved by this

Court in its entirety and adopted by this Court as its Final

Appealable Order.

{¶ 7} “IT IS FURTHER ORDERED that all costs associated with

this Objection shall be assessed to both parties equally.

{¶ 8} “THIS IS A FINAL APPEALABLE ORDER.

“___________/s/___________

“Thomas J. Capper, Judge”

{¶ 9} On July 18, 2011, George filed a notice of appeal from

the Entry of June 28, 2011. George’s brief on appeal presents

the following two assignments of error: 4

FIRST ASSIGNMENT OF ERROR

{¶ 10} “The order designating the Defendant/Appellee, JILL M.

BENNETT, as the residential parent for the two minor children,

adopted by the trial court, is based in an erroneous conclusion

drawn by the magistrate which is not supported by the evidence

presented during the various hearings held herein when the adoption

of either of the shared parenting plans submitted by

Plaintiff/Appellant, GEORGE F. BENNETT, JR. is, in fact, supported

by the evidence presented during the various hearings and is truly

in the best interest of the minor children.”

SECOND ASSIGNMENT OF ERROR

{¶ 11} “The trial court abused its discretion by adopting the

magistrate’s decision finding against the manifest weight of the

evidence that Plaintiff/Appellant, GEORGE BENNETT JR’s USAA

personal injury settlement from an accident, which occurred while

on duty as an officer of the Clark County Sheriff were marital

property subject to division during the divorce.”

{¶ 12} The two errors George assigns for our review present

the same contentions that the court rejected when it overruled

George’s objection to the magistrate’s decision in those same

respects.

{¶ 13} The appellate jurisdiction of the courts of appeals to

review final judgments and orders of lower courts of record is 5

as may be provided by legislative enactment. Section 3(B)(2),

Article IV, Ohio Constitution. That jurisdiction is limited to

final orders, judgments, and decrees. Id.; R.C. 2505.03(A).

Final orders and judgments are defined by R.C. 2505.02.

{¶ 14} “A final appealable order has three essential

characteristics: it is final under Civil Rule 54(B); appealable

under RC Ch. 2505; and meets the definition of an order, judgment,

or decree. Each of these characteristics is a separate

requirement, the absence of any of which will deprive the court

of jurisdiction to hear the appeal.” Sowald & Morganstern, Ohio

Practice Domestic Relations Law (2009) 725, Section 32:1 (emphasis

in original).

{¶ 15} A judgment and decree of divorce is final under Civ.R.

54(B) when it determines every claim presented by the parties to

an action. It is then appealable under R.C. 2505.02(B)(1) because

the judgment and decree “affects a substantial right in an action

that in effect determines the action and prevents a judgment.”

It meets the definition of a judgment, order, or decree when it

satisfies the definitional provisions of Civ.R. 54(A), which

states:

{¶ 16} “Definition; form. ‘Judgment’ as used in these rules

includes a decree and any order from which an appeal lies as provided

in section 2505.02 of the Revised Code. A judgment shall not 6

contain a recital of pleadings, the magistrate’s decision in a

referred matter, or the record of prior proceedings.” (Emphasis

supplied.)

{¶ 17} When no objections to a magistrate’s decision are filed,

the court may adopt the decision as the court’s order “unless it

determines that there is an error of law or other defect evident

on the face of the magistrate’s decision.” Civ.R. 53(D)(4)(c).

In that instance the court performs no independent review of the

merits of the magistrate’s decision, because the lack of objections

waives the parties’ right to such a review, as well as the right

to assign error on appeal concerning the court’s adoption of

findings of fact or conclusions of law in the magistrate’s decision.

Civ.R. 53(D)(3)(b)(iv).

{¶ 18} When timely objections are instead filed, “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.” Civ.R.

54(D)(4)(d). That review is the equivalent of a de novo

determination. Klamfoth v. Klamfoth (April 9, 1996), Franklin

App. No. 95APF10-1396.

{¶ 19} “In addition to specifically ruling on objections, it

has long been held that the trial court must issue a separate

judgment reflecting its own decision. A judgment which 7

incorporates the trial court’s own decision on objections to the

magistrate’s decision meets the requirements of a final order under

Civil Rule 54(A).[]

{¶ 20} “Civil Rule 54(A) provides that ‘[a] judgment entry shall

not contain a recital of pleadings, the magistrate’s decision in

a referred matter, or the record of prior proceedings.’ A trial

court must render its own separate judgment and may not simply

state that it approves, adopts, or incorporates a magistrate’s

decision. A judgment entry is not sufficient if it merely recites

that a recommendation/decision is approved and adopted thereby

requiring the parties to refer to another document in order to

determine exactly what their rights and obligations are. It has

been said that ‘. . . the judgment entry must be worded in such

a manner that the parties can readily determine what is necessary

to comply with the order of the court’ and need not resort to any

other documents.[] Accordingly, for a judgment entry of the court

to be a final appealable order, it must adopt, reject, or modify

the magistrate’s decision and state, for identification purposes,

the date the magistrate’s decision was filed.[] It should state

the outcome and contain an order which states the relief granted

so that the parties are able to determine their rights and

obligations by referring solely to the judgment entry and should

be a document separate from the magistrate’s decision.[]” Sowald 8

& Morganstern, Ohio Practice Domestic Relations Law (2009) 701-02,

Section 31:13 (internal footnotes omitted).

{¶ 21} The “Entry” the court filed on June 28, 2011, from which

this appeal is taken, fails to contain an order or orders which

states the relief the court granted the parties concerning the

matters in the magistrate’s decision to which George filed his

two objections, in order that the parties could determine and be

aware of their rights and obligations solely from the court’s

judgment, separate from the magistrate’s decision to which the

judgment also makes reference. In that respect, the judgment

improperly contained a “recital” of the magistrate’s decision as

the basis of the relief the court purported to grant, contrary

to Civ.R. 54(A). In its form, therefore, the June 28, 2011 Entry

from which this appeal is taken fails to meet the definition of

a judgment, order, or decree. Not being a judgment, order, or

decree, the entry is not subject to appellate review. R.C.

2505.03(A). We therefore lack jurisdiction to review the error

assigned.

{¶ 22} The appeal will be dismissed and the case remanded to

the trial court for further proceedings on the objections the

parties filed. The parties should note that in the event the court

rules on questions of fact in their objections by entering a

judgment which is proper in its form for purposes of Civ.R. 54(A) 9

but nevertheless general in its character, an aggrieved party may

request findings of fact and conclusions of law from the court

pursuant to Civ.R. 52. Findings and conclusions would greatly

aid in narrowing the issues in any future appeal.

FROELICH, J., concurs.

HALL, J., dissents.

Hall, J., dissenting:

{¶ 23} I do not believe that the trial court is required to

re-publish a 51-page Judgment Entry and Decree of Divorce that

adopted the Magistrate’s decision and which was filed before timely

objections were filed by both parties. The Entry overruling of

the objections in their entirety, after an independent review is,

in my view, a final order and I would address the merits of the

appeal.

. . . . . . . . .

Copies mailed to:

Douglas W. Geyer, Esq. Jon Paul Rion, Esq. Hon. Thomas J. Capper