[Cite as Cooper v. Cooper, 2014-Ohio-4991.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

NATASHA COOPER NKA FRILEY, 

 PLAINTIFF-APPELLANT, CASE NO. 9-13-62 

 v. 

MICHAEL COOPER, II, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

NATASHA COOPER NKA FRILEY, 

 PLAINTIFF-APPELLANT, CASE NO. 9-13-64 

 v. 

MICHAEL COOPER, II, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeals from Marion County Common Pleas Court 

Family Division 

Trial Court No. 2005PC0248 and 2005PC0249 

Judgments Affirmed in Part, Reversed in Part and Cause Remanded 

Date of Decision: November 10, 2014 

 

APPEARANCES: 

 

Jeff Ratliff for Appellant 

Michael Anthony Cooper, II, Appellee 
Case Nos. 9-13-62, 9-13-64 

 

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WILLAMOWSKI, P.J.

{¶1} This appeal concerns custody of two minor children of Plaintiffappellant, Natasha Cooper n.k.a. Natasha Friley (“Natasha”), and Defendantappellee, Michael Cooper (“Michael”). Natasha brings this consolidated appeal 

from the judgments of the Court of Common Pleas for Marion County, Ohio, 

Family Division, granting Michael’s Motion to Reallocate Parental Rights and 

Responsibilities. For the reasons that follow, we affirm in part and reverse in part 

the trial court’s judgments. 

{¶2} On June 15, 2011, Natasha and Michael entered into a Shared 

Parenting Plan, under which Natasha was designated “the residential parent for 

school placement and registration purposes.” (R.1

 at 60.) Michael was ordered to 

pay child support. (Id.) On March 25, 2013, Michael filed a Motion to Reallocate 

Parental Rights and Responsibilities. (R. at 71.) Following a hearing on the 

matter before the magistrate of the trial court, the magistrate recommended 

granting Michael’s motion, on August 6, 2013. (R. at 88.) The trial court adopted 

the magistrate’s decision on August 23, 2013, thus terminating the shared 

parenting plan, designating Michael as the residential parent and legal custodian of 

the parties’ minor children, and ordering Natasha to pay child support. (R. at 89.) 

{¶3} Natasha now appeals raising the following assignments of error. 

 

1

 The relevant pleadings are the same in the two trial court cases appealed here. Therefore, for simplicity, 

we cite to the filings in the trial court case number 05-PC-248 only. 
Case Nos. 9-13-62, 9-13-64 

 

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ASSIGNMENT OF ERROR NUMBER ONE 

The Magistrate failed to follow the requirements of Civ. R. 

53(D)(3)(a)(iii), which states that a magistrate’s decision shall 

indicate conspicuously that a party shall not assign as error on 

appeal the court’s adoption of any factual finding or legal 

conclusion unless the party timely and specifically objects to that 

factual finding or legal conclusion as required by Civ. R. 

53(D)(3)(b). 

ASSIGNMENT OF ERROR NUMBER TWO 

The trial court failed to conduct a de novo independent review of 

the Magistrate’s Decision dated August 6, 2013. 

ASSIGNMENT OF ERROR NUMBER THREE 

The trial court failed to appropriately advise Plaintiff-Appellant 

of her right to proceed with an attorney at the final hearing, or 

allow for a continuance in order to seek representation. 

First Assignment of Error— 

Compliance with Civ.R. 53(D)(3)(a)(iii) 

{¶4} In the first assignment of error, Natasha challenges the magistrate’s 

decision as defective due to noncompliance with Civ.R. 53(D)(3)(a)(iii), which 

states: 

A magistrate’s decision shall indicate conspicuously that a party 

shall not assign as error on appeal the court’s adoption of any factual 

finding or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), 

unless the party timely and specifically objects to that factual finding 

or legal conclusion as required by Civ.R. 53(D)(3)(b). 

Civ.R. 53. The requirement that the magistrate’s decision includes the 

“conspicuous” notice serves to warn the parties of the consequences of failing to 
Case Nos. 9-13-62, 9-13-64 

 

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file objections—bar from assigning errors to the magistrate’s findings and 

conclusions on appeal. See State ex rel. Johnson v. Ryan, 127 Ohio St.3d 267, 

2010-Ohio-5676, 939 N.E.2d 146, ¶ 3; Williams v. Ormsby, 9th Dist. Medina No. 

09CA0080-M, 2010-Ohio-3666, ¶ 12. 

{¶5} The decision of the magistrate in this case included the following 

language with respect to the Civ.R. 53 notice requirement. 

NOTICE OF RIGHT TO OBJECT TO DECISION OF 

MAGISTRATE

 You are hereby notified that pursuant to Ohio Civil Rule 53 

(E)(2)2

 you have the right to file and serve objections to the 

Magistrate’s Decision within fourteen (14) days of the filing of the 

Decision. If either party timely files objections, the other party may 

file and serve objections within ten (10) days of the date on which 

the first objections were filed, or within the time otherwise 

prescribed by this rule, whichever period expires last. The objections 

shall be considered a motion. Objections shall be specific and state 

with particularity the grounds of the objection. Upon consideration 

of the objections, the Court may adopt, reject, or modify the 

Decision; hear additional evidence; return the Decision to the 

Magistrate with instructions, or hear the matter itself. 

(R. at 88, at 7.) 

{¶6} Natasha asserts that the language employed by the magistrate in this 

case is insufficient under Civ.R. 53(D)(3)(a)(iii). Her challenge, and thus, the 

issue before us concerns the interpretation and application of a civil rule. See 

 

2

 Civ.R. 53 was amended in 2006, resulting in removal of subsection (E), which is now reorganized as part 

of subsection (D). See Donofrio v. Whitman, 191 Ohio App.3d 727, 2010-Ohio-6406, 947 N.E.2d 715, ¶ 

41 (7th Dist.). Therefore, the magistrate’s Notice referred to a nonexistent subsection of Civ.R. 53. 
Case Nos. 9-13-62, 9-13-64 

 

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Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, ¶ 8. Therefore, 

it presents a question of law, which we review de novo. Id. 

{¶7} We agree with Natasha’s assertion that the language employed by the 

magistrate in this case lacks the warning required by Civ.R. 53(D)(3)(a)(iii), 

because although it informs Natasha about her right to file objections, it fails to 

warn her of the consequences of the failure to file objections. Therefore, the 

waiver language, required under Civ.R. 53(D)(3)(a)(iii), is lacking. See Larson at 

¶ 14 (holding that the magistrate failed to comply with Civ.R. 53(D)(3)(a)(iii) 

where its decision failed “to give the parties notice of the consequences of their 

failure to object within fourteen days”); see also OSI Funding Corp. v. Huth, 5th 

Dist. Tuscarawas No. 06AP120068, 2007-Ohio-5292, ¶ 19-29 (finding defective 

the magistrate’s decision that lacked “the statutory waiver language as required by 

Civ. R. 53(D)(3)(a)(iii)”). 

{¶8} In Larson, we held that “[i]f a magistrate fails to provide the parties 

with notice of the requirement to file objections, the aggrieved parties, at a 

minimum, are relieved from Civ.R. 53(D)(3)(b)(iv)’s waiver rule and are 

permitted to raise their arguments for the first time on appeal.” ¶ 14. But where, 

as here, the aggrieved party “did not raise any arguments on appeal except for the 

magistrate’s failure to abide by Civ.R. 53(D)(3)(a)(iii),” the appropriate remedy is 

to reverse the trial court’s decision so that the party can have an opportunity to file 

objections to the magistrate’s findings of fact and conclusions of law. Id.; see also 
Case Nos. 9-13-62, 9-13-64 

 

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Keller v. Keller, 9th Dist. Summit No. 25967, 2012-Ohio-4029, ¶ 7 (“In cases 

where the magistrate’s decision does not notify the parties of need to file 

objections, the appropriate remedy is for this court to reverse and remand the 

matter to the trial court for the magistrate to prepare a decision which complies 

with Civ.R. 53(D)(3)(a)(iii), giving the parties an opportunity to file timely 

objections.”); OSI Funding Corp. at ¶ 28 (holding that “the absence of this 

language from the Magistrate’s Decision warrants reversal of the trial court’s 

approval and adoption of such”). 

{¶9} Therefore, we sustain the first assignment of error and reverse the trial 

court’s judgment so Natasha can have an opportunity to file objections to the 

magistrate’s decision. 

Second Assignment of Error—Independent Review 

of the Magistrate’s Decision by the Trial Court 

{¶10} In this assignment of error, Natasha alleges that “[t]he trial court 

failed to conduct a de novo independent review of the Magistrate’s Decision dated 

August 6, 2013.” (App’t Br. at 12.) We need not address Natasha’s claim at this 

time, however, because in light of our holding in the first assignment of error, the 

trial court’s judgment entry, reviewing and adopting the magistrate’s decision, is 

vacated. This assignment of error is thus moot. 
Case Nos. 9-13-62, 9-13-64 

 

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Third Assignment of Error— 

Natasha’s Request for Counsel 

{¶11} In her last assignment of error, Natasha claims surprise and prejudice 

stemming from the fact that the magistrate, or the trial court, did not inform her of 

an opportunity to obtain an attorney to assist her in the matter. (App’t Br. at 17.) 

Nevertheless, she admits that she “mistakenly thought she was able to represent 

herself,” and only later “realized that she was not capable to do so.” (Reply Br.) 

She further complains that the magistrate should have granted her continuance to 

obtain an attorney when she stated, at the end of the hearing, “I feel like I need to 

get me an attorney,” and “I would just like to have an attorney for this.” (See Tr. 

at 142, 144.) 

{¶12} Natasha cites no law in support of this assignment of error, while our 

review of Ohio law weighs against her arguments. In Moore v. Moore, an 

appellant argued that “the trial court did not ‘protect the integrity of the trial 

process’ by permitting appellant to represent himself at trial without warning him 

of the dangers of self-representation.” 10th Dist. Franklin No. 03AP-334, 2003-

Ohio-5579, ¶ 3. The Tenth District Court of Appeals noted that it was not aware 

“of any obligation imposed on a trial court to warn a party in a civil case as to the 

‘disadvantages’ and ‘pitfalls’ of proceeding pro se.” Id. at ¶ 5. Similarly, the 

court was not aware “of any obligation imposed on a trial judge to appoint counsel 

for a pro se litigant in a civil trial who fails or refuses to retain counsel.” Id. at ¶ 4. 
Case Nos. 9-13-62, 9-13-64 

 

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We are also not aware of any mandate that would require the magistrate or the trial 

court in this case to inform Natasha “that [she] had an opportunity to have an 

attorney present to represent her.” (See App’t Br. at 17.) 

{¶13} Natasha was no stranger to the Family Court, having been involved 

in proceedings over the parenting of her minor children since July 2005. (See R. 

at 1, Compl.) Throughout that time, she has been represented by attorneys. (See. 

e.g., R. at 19, Notice of Appearance of Counsel; R. at 60, Agreed J. Entry.) 

Although Natasha was represented by an attorney in June 2011, when the parties 

entered the shared parenting agreement (see R. at 60), she did not retain an 

attorney for the most recent dispute, concerning Michael’s Motion to Reallocate 

Parental Rights and Responsibilities. 

{¶14} At the beginning of the hearing concerning Michael’s motion, the 

magistrate asked Natasha, “Ms. Friley? You prepared to go forward here today?” 

Natasha responded, “Yep.” (Tr. at 1.) The magistrate then explained, 

I do need to—and I normally do when anyone represents themselves, 

I just advise them that I’m required to follow the Rules of Evidence 

and I need to—I am required to hold you to the same standard I 

would if you were an attorney. So, I’ll try to help you out the best 

that we can in terms of—of representing yourself. However, I 

can’t—I can’t assist you. Do you understand that? 

(Tr. at 2.) Natasha responded, “Okay.” (Id.) In light of these facts, we are unable 

to find that Natasha was surprised or prejudiced by the magistrate’s failure to 
Case Nos. 9-13-62, 9-13-64 

 

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explain the right to be represented by an attorney at the final hearing concerning 

reallocation of parental rights and responsibilities. 

{¶15} At the very end of the hearing, after presentation of all the witnesses 

had been concluded, and upon the magistrate’s question whether she wanted to 

submit exhibits, Natasha remarked, “I feel like—I feel like I need to get me an 

attorney.” (Tr. at 142.) After she rested her case, Natasha again remarked, “I 

would just like to have an attorney for this--.” (Tr. at 144.) The magistrate 

responded, “It’s—the Final Hearing’s today. We just had the Hearing.” (Id.) 

Natasha asserts that her comments, made at the conclusion of the final hearing, 

constituted a request for continuance and that the magistrate erred by denying the 

continuance. 

{¶16} Nevertheless, 

[i]t is well established under Ohio law that the decision to grant or 

deny a continuance lies within the sound discretion of the trial court. 

Thus, the trial court’s final decision will not be reversed on appeal 

absent an abuse of discretion. An abuse of discretion has been 

defined as a decision that is unreasonable, arbitrary or 

unconscionable, rather than a mere error in judgment. 

Burton v. Burton, 132 Ohio App.3d 473, 475, 725 N.E.2d 359 (3d Dist.1999), 

citing State v. Lorraine, 66 Ohio St.3d 414, 423, 613 N.E.2d 212 (1993), State v. 

Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), and Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When reviewing the 

magistrate’s decision on a motion for continuance we apply “a balancing test, 
Case Nos. 9-13-62, 9-13-64 

 

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weighing the trial court’s interest in controlling its own docket, including 

facilitating the efficient dispensation of justice, versus the potential prejudice to 

the moving party.” Id. at 476. There are several factors to be considered when 

determining whether the decision to grant or deny a continuance was proper. 

Those factors include: “the length of the delay requested; whether previous 

continuances have been granted; the inconvenience to the parties, witnesses, 

attorneys and the court; whether the request is reasonable or purposeful and 

contrived to merely delay the proceedings; and whether the movant contributed to 

the circumstances giving rise to the request.” Id. Natasha fails to point to any 

factors that would favor reversal or show that the magistrate abused his discretion 

in denying the “request for continuance” made at the conclusion of the hearing. 

{¶17} Michael’s motion was filed on March 25, 2013. (R. at 71.) The final 

hearing on this issue was initially scheduled for May 31, 2013, but upon Natasha’s 

motion for continuance, filed on April 23, 2013, the hearing was rescheduled to 

July 18, 2013. (See R. at 82, 84.) Thus, Natasha was aware of Michael’s filing in 

April 2013, at the latest, when she filed her first request to continue, and she had 

almost three months to retain counsel prior to the final hearing. Natasha does not 

allege that she attempted to or desired to seek counsel at any time prior to the 

conclusion of the hearing. At the beginning of the hearing, she stated that she was 

prepared to proceed and did not express any concerns about a lack of 

representation. Therefore, it appears to have been her conscious decision to 
Case Nos. 9-13-62, 9-13-64 

 

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proceed without counsel and as such, she had contributed to the circumstances of 

which she now complains. Furthermore, the request made at the conclusion of the 

hearing was not reasonable, considering that all the evidence had been presented 

and the parties had already rested. Repeating the entire process would likely have 

caused inconvenience upon the parties and the court. 

{¶18} In Moore, the Tenth District Court of Appeals reviewed a similar 

scenario, where the appellant chose to proceed pro se but, “after all of the evidence 

had been presented,” the appellant “indicated he thought he may need an 

attorney.” 10th Dist. Franklin No. 03AP-334, 2003-Ohio-5579, at ¶ 6. The court 

of appeals held that such a request for continuance to obtain an attorney at the end 

of the hearing “was untimely,” and the trial court did not err in denying it. Id. at ¶ 

8. 

In the present case, appellant had over three weeks to obtain an 

attorney and could have requested a continuance much earlier than 

after the trial had concluded. His untimely request would have 

greatly inconvenienced the parties, given the trial was already over 

and all of the evidence had already been presented. Importantly, our 

review of the record supports the proposition that appellant 

voluntarily and with full knowledge proceeded to trial without an 

attorney. We have no doubt that appellant was able to decide for 

himself whether he wished to be represented, and he simply believed 

he could competently proceed on his own. His realization that he 

may have benefited from the assistance of an attorney came much 

too late. Under these circumstances, appellant cannot complain at the 

very late stages of the proceeding that he desired counsel. 

Id. at ¶ 9, 11. 
Case Nos. 9-13-62, 9-13-64 

 

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{¶19} Based upon our review of the record and the case law on topic, we 

cannot conclude that the magistrate abused his discretion in not granting 

continuance upon Natasha’s “request” for an attorney made at the conclusion of 

the final hearing on the matter. The third assignment of error is overruled. 

Conclusion

{¶20} Having reviewed the arguments, the briefs, and the record in this 

case, we find error prejudicial to Appellant in the particulars assigned and argued 

in the first assignment of error. The judgments of the Court of Common Pleas for 

Marion County, Ohio, Family Division, are therefore affirmed in part and reversed 

in part. This matter is remanded to the trial court with instructions to cause the 

magistrate’s decision to be reissued with the proper Civ.R . 53(D)(3)(a)(iii) waiver 

language, allowing for Plaintiff-appellant to file any objections she may have 

thereto. 

Judgments Affirmed in Part, 

 Reversed in Part and 

Cause Remanded 

SHAW and PRESTON, J.J., concur. 

/jlr