[Cite as Lingenfelter v. Lingenfelter,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

JASON LINGENFELTER C.A. No. 14AP0005

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE NICHOLE LINGENFELTER COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 12-DR-0288

DECISION AND JOURNAL ENTRY

Dated: September 30, 2015

MOORE, Judge.

{¶1} Defendant-Appellant Nichole Sorenson, formerly known as Nichole Lingenfelter

(“Wife”), appeals from the judgment of the Wayne County Court of Common Pleas. We

reverse.

I.

{¶2} Wife and Jason Lingenfelter (“Husband”) were married on April 15, 2000. Two

children were born of the marriage, K.L. and S.L. On June 27, 2012, Husband filed for divorce.

The parties entered into stipulations with respect to many issues, but were unable to reach an

agreement concerning several areas, including the amount of equity in the marital home, how to

allocate the parties’ debts, the precise details of the shared parenting plan, and spousal support.

{¶3} The matter proceeded to a hearing before a magistrate over the course of two

days: July 30, 2013, and October 10, 2013. At the end of the first day of the hearing, the

magistrate met with the attorneys. Their discussion was recorded. Toward the end of the 2

discussion, the magistrate interjected: “I know [Husband’s] mom and dad by the way just so

you know that. I know Dave and Alice Lingenfelter. I’ve known them for 35 years. In fact *

* * my [former] secretary is the niece of Alice.” Shortly thereafter, one of the attorneys alerted

the magistrate to the fact that they were still on the record and being recorded. Almost

immediately, the transcribed testimony ended.

{¶4} No motion to disqualify was filed between the first day and second day of the

hearing or in the two weeks pending issuance of the decision. The magistrate issued a decision

October 25, 2013. While not necessarily indicative of bias, in his decision, the magistrate did

find on more than one occasion that Husband’s testimony was more credible than Wife’s on

issues of fact. Additionally, the magistrate seemed extremely bothered by Wife’s testimony

regarding her job search and expressed his belief that she was not adequately pursuing

employment. For the most part, the magistrate’s decision was favorable to Husband’s position.

The trial court entered judgment that same day adopting the magistrate’s recommendations.

{¶5} At some point thereafter, Wife retained new counsel. Wife’s new counsel filed

objections to the magistrate’s decision, while at the same time requesting an extension of time

to file a memorandum in support of the objections and possibly amended objections once

counsel was in possession of the hearing transcript.

{¶6} The issue of the magistrate’s conflict of interest was not raised until January 8,

2014, when Wife’s new counsel filed a memorandum in support of objections and a motion to

disqualify the magistrate. Both filings alleged that the magistrate had a conflict of interest. The

trial court overruled Wife’s objections and denied her motion to disqualify the magistrate. The

trial court concluded that, “[t]he fact that [the magistrate] knows [Husband’s] parents does not

disqualify him without something more. Judges and magistrates often know people related to 3

litigants. There is nothing in the record to show that this had any bearing on the decision. In

any event, the issue should have been raised long ago.”

{¶7} Wife has appealed, raising four assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW WHEN THE TRIAL COURT OVERRULED [WIFE’S] MOTION TO DISQUALIFY THE MAGISTRATE.

{¶8} Wife asserts in her first assignment of error that the trial court abused its

discretion in denying Wife’s motion to disqualify the magistrate. Based upon the unique

circumstances of this case, we agree that the trial court abused its discretion in denying Wife’s

motion without having a hearing on her motion.

{¶9} “An independent, fair, and impartial judiciary is indispensable to our system of

justice. The United States legal system is based upon the principle that an independent,

impartial, and competent judiciary, composed of men and women of integrity, will interpret and

apply the law that governs our society. Thus, the judiciary plays a central role in preserving the

principles of justice and the rule of law.” Preamble of the Code of Judicial Conduct. With

respect to judicial disqualification, the Supreme Court of Ohio has stated that “‘[p]reservation of

public confidence in the integrity of the judicial system is vitally important,’ and ‘[a]n

appearance of bias can be just as damaging to public confidence as actual bias.’” In re

Disqualification of Burge,

,

, quoting In re

Disqualification of Murphy,

,

, ¶ 6. Thus, the Code of

Judicial Conduct provides that “[a] judge shall disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned[.]” Jud.Cond.R. 2.11(A). 4

Magistrates are judges within the meaning of the Judicial Code of Conduct. See Application of

the Code of Judicial Conduct. The comments to the rule advise that, “[a] judge should disclose

on the record information that the judge believes the parties or their lawyers might reasonably

consider relevant to a possible motion for disqualification, even if the judge believes there is no

basis for disqualification.” See Jud.Cond.R. 2.11, Comment 5.

{¶10} While the review of alleged judicial misconduct is outside the jurisdiction of this

Court, Hendy v. Wright, 9th Dist. Summit No. 26422,

, this Court can

review properly raised challenges to a magistrate’s impartiality. See J.B. v. Harford, 9th Dist.

Summit No. 27231,

. The proper method to challenge a magistrate’s

impartiality is to file a motion for disqualification with the trial court. See

Civ.R. 53(D)(6)

specifically provides that, “[d]isqualification of a magistrate for bias or other cause is within the

discretion of the court and may be sought by motion filed with the court.” A trial court abuses

its discretion if its decision is “unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore,

(1983).

{¶11} In the context of judicial disqualification, the Supreme Court of Ohio has held that

“[t]he proper test for determining whether a judge’s participation in a case presents an

appearance of impropriety is * * * an objective one. A judge should step aside or be removed if

a reasonable and objective observer would harbor serious doubts about the judge’s

impartiality.” In re Disqualification of Farmer,

,

.

{¶12} Here, Wife’s new counsel did file a motion to disqualify the magistrate which the

trial court summarily denied stating: “The fact that [the magistrate] knows [Husband’s] parents

does not disqualify him without something more. Judges and magistrates often know people

related to litigants. There is nothing in the record to show that this had any bearing on the 5

decision. In any event, the issue should have been raised long ago.” In light of the record

before us, we are troubled by the trial court’s decision which appears not to have fully

considered the appearance of bias to a reasonable and objective observer as well as the factual

circumstances which may have necessitated the delay in filing the motion to disqualify.

{¶13} As noted above, at the end of the first day of the hearing, the magistrate asked

only the attorneys to stay in the courtroom and proceeded to engage them in a discussion that

was recorded. Towards the end of that discussion, the magistrate interjected: “I know

[Husband’s] mom and dad by the way just so you know that. I know Dave and Alice

Lingenfelter. I’ve known them for 35 years. In fact * * * my [former] secretary is the niece of

Alice.” Shortly thereafter, the recording abruptly ended after one of the attorneys alerted the

magistrate that he was still on the record. Wife’s new counsel pointed to this revelation by the

magistrate as evidence of a potential conflict of interest in both his objections to the

magistrate’s decision and the motion to disqualify. And while not specifically pointed to as

evidence of bias or of a conflict of interest, Wife’s new counsel did note in his objections to the

magistrate’s decision examples of the magistrate disapproving of Wife’s efforts to find a job

and of the magistrate forming an opinion of Wife prior to hearing her complete testimony.

During the same discussion at the end of the first day of the hearing, the magistrate stated with

respect to the issue of whether Wife was entitled to spousal support, “I am not impressed with

her. I really am not. I mean, she should have been out beating the bricks getting a job for the

last year[.]”

{¶14} Moreover, it is apparent from even a cursory review of the magistrate’s decision

that credibility played an important role in the magistrate’s factual findings. The decision is

notable for the number of negative references to Wife’s attempts at securing employment and 6

for the magistrate’s propensity for siding with Husband on issues of credibility. While this

could point to a reality that Husband’s testimony was in fact more credible than Wife’s, there

was very little in the way of concrete documentary or physical evidence to support one party’s

testimony over the other. So, the crediting of Husband’s testimony could also evidence bias on

the part of the magistrate based upon a lengthy and close relationship with Husband’s family.

{¶15} With respect to the trial court’s concern that the motion was untimely, under the

circumstances of this case, and absent additional information, we conclude the trial court abused

its discretion in denying the motion on that basis. Certainly, this Court does not encourage

litigants who believe that a magistrate may be biased to wait to file a motion to disqualify until

after the magistrate has issued an adverse decision. Doing so tends to lead a reviewing court to

question the motive behind filing the motion to disqualify. However, in this instance we

conclude there could be legitimate reasons why the motion to disqualify was not filed until after

the magistrate issued the decision.

{¶16} It is unclear from the record whether Wife’s counsel at the hearing ever disclosed

to Wife the magistrate’s relationship with Husband’s parents. Moreover, it is unclear if the

magistrate ever brought the issue to the attention of the parties. Accordingly, it is possible that,

when Wife retained new counsel in the beginning of November 2013, new counsel was not

aware of the potential bias issue either. At that point in time, absent being informed by Wife or

Wife’s former counsel, new counsel would have no way to know of the potential issue. The

transcript of the hearing was not filed until December 9, 2013. Therefore, new counsel might

not have discovered the issue until after December 9, 2013. Thus, we cannot say that new

counsel’s act of filing additional objections and the motion to disqualify on January 8, 2014, 7

inherently constituted an unreasonable delay or amounted to a forfeiture in light of the particular

circumstances of this case.

{¶17} Given the foregoing, we conclude the trial court abused its discretion in failing to

hold a hearing to evaluate the merits of the motion to disqualify the magistrate and the

reasonableness of the delay in filing the motion. While disqualification may not be ultimately

warranted, the record in this case raises numerous questions that are not answered. Absent

answers, there is evidence that could lead a reasonable and objective observer to “harbor serious

doubts about the [magistrate’s] impartiality.” In re Disqualification of Farmer,

,

.

{¶18} Wife’s first assignment of error is sustained and the matter is remanded for a

hearing on her motion to disqualify.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW WHEN THE TRIAL COURT USED THE DATE OF SEPARATION AS OPPOSED TO THE STIPULATED TERMINATION DATE OF THE MARRIAGE WHEN CALCULATING THE EQUITY IN THE MARITAL HOME.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW WHEN IT DETERMINED LENGTH AND AMOUNT OF SPOUSAL SUPPORT AWARDED TO [WIFE].

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT CALCULATED CHILD SUPPORT, FAILED TO MAKE A CHILD SUPPORT AWARD TO [WIFE] AND NAM[ED] [HER] THE CHILD SUPPORT OBLIGOR.

{¶19} Wife argues in her second assignment of error that the trial court abused its

discretion when it used the date of the separation to calculate the equity in the marital home

instead of using the stipulated termination date. Wife argues in her third assignment of error 8

that the trial court erred in determining the amount and length of the spousal support award. In

her fourth assignment of error, Wife asserts that the trial court erred in failing to award her child

support and in making her the obligor.

{¶20} In light of our resolution of Wife’s first assignment of error, and the possibility

that a new hearing before a new magistrate will be required, we conclude that these remaining

assignments of error are not properly before us and we decline to address them at this time.

III.

{¶21} We sustain Wife’s first assignment of error and decline to address her remaining

assignments of error at this time. The judgment of the Wayne County Court of Common Pleas

is reversed and the matter is remanded for proceedings consistent with this opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 9

Costs taxed to Appellee.

CARLA MOORE FOR THE COURT

CARR, J. CONCURS.

HENSAL, P. J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶22} I respectfully dissent from the majority’s sustaining of Wife’s first assignment of

error. However, because reversible error occurred in this case, I concur with the decision to

reverse the trial court’s judgment.

{¶23} As the majority notes, the magistrate disclosed to counsel at the end of the first

day of the hearing that he knew Husband’s parents. Despite this disclosure, however, Wife did

not move to disqualify the magistrate prior to the second day of the trial more than two months

later or prior to the magistrate issuing his decision. Under these circumstances, I do not believe

that it was unreasonable for the trial court to determine that this issue was not timely raised as it

is well established that a party should bring a potential error to the attention of the court at a time

it may be corrected rather than waiting to raise the issue after receiving an unfavorable decision.

See, e.g., State v. Zander, 9th Dist. Summit No. 24706,

, ¶ 75 (“‘[A] defendant

must bring an alleged error to the attention of the trial court at a time when the error can be

corrected’ and ‘may not sit idly while hoping for a favorable jury verdict and only assert an

issue, capable of being remedied at the time of its occurrence, upon receiving an unfavorable

jury verdict.’”), quoting State v. Mills, 9th Dist. Summit No. 21751,

. 10

{¶24} Nor do I think that a hearing was necessary in light of the arguments raised by

Wife in her motion to disqualify the magistrate. Notably, Wife never claimed in her motion to

disqualify the magistrate to be unaware of the potential conflict, instead merely asserting that the

record is silent as to whether or not she had knowledge of that fact. Absent at least the allegation

that Wife was actually unaware of the issue, it seems reasonable that the trial court would not

hold a hearing, especially given that the magistrate explicitly disclosed the issue to Wife’s

attorney on the record. While it is possible that Wife’s counsel never relayed this information to

her, there is no reason to presume that that was the case. 1 Furthermore, even assuming Wife’s

counsel did not relay this information to her, I do not understand why that would affect the

timeliness of her motion. Action or inaction by counsel does not generally reset the timing for

dispositive motions, nor does the retention of new counsel. Certainly, given the facts in this

case, the trial court could have treated the motion as timely and exercised its discretion

accordingly, including holding a hearing on the motion. However, these are discretionary

decisions, and I am cognizant that I must defer to the trial court’s decision absent an abuse of

discretion.

{¶25} Accordingly, I disagree with the majority’s conclusion that the trial court

committed reversible error when it denied Wife’s motion to disqualify the magistrate, and I

would overrule Wife’s first assignment of error.

{¶26} Nevertheless, I agree that this case should be reversed. The trial court failed to

determine whether the parties’ checking accounts were marital or separate property and did not

1 It is also possible Wife heard the exchange in the courtroom after the first day of trial. Although the majority interprets the transcript to mean that Wife left after the hearing, the transcript is silent on the issue. The transcript merely reflects that the trial court specifically asked to speak directly to counsel about the settlement negotiations. It is unclear whether this occurred in or outside the presence of the parties. 11

establish a value for them. “When a trial court fails to classify all of the parties’ property as

either marital or separate and then fails to value that property in its findings, an appellate court

cannot effectively review the accompanying entry.” Goebel v. Weling, 9th Dist. Summit No.

19385,

, *3 (July 28, 1999), quoting Shuman v. Shuman, 9th Dist. Summit No.

16836,

, *5 (Apr. 5, 1995). This is relevant in this case as the trial court used a

different date for valuing the debt on the marital home than it did for the remainder of the marital

assets. In order to review the court’s decision, we must have a complete picture of the marital

assets and their values. Therefore, I would reverse the trial court’s decision and remand for it to

determine whether the parties’ checking accounts were separate or marital property.

Accordingly, I concur in the reversal.

APPEARANCES:

NORMAN R. MILLER, JR., Attorney at Law, for Appellant.

ROSANNE K. SHRINER, Attorney at Law, for Appellee.