[Cite as M.S. v. J.S., 2020-Ohio-5550.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

M.S. Court of Appeals No. L-19-1234 

 

 Appellee Trial Court No. AD 18270586 

v. 

 J.S. DECISION AND JUDGMENT

Appellant Decided: December 4, 2020 

* * * * * 

 Stephen M. Szuch and Patricia Hayden Kurt, for appellee. 

 Abbey M. Flynn, for appellant. 

* * * * * 

SINGER, J.

{¶ 1} This case is before the court on appeal by appellant J.S., from the 

September 17 and December 2, 2019 judgments of the Lucas County Court of Common 

Pleas, Juvenile Division, denying appellant’s motion for reconsideration regarding 

dismissal of her objections, and approving a shared parenting plan. For the reasons that 

follow, we affirm the trial court’s judgment. 
2.

{¶ 2} Appellant assigns the following as error in appealing the judgment. 

1. The trial court committed reversible error when it denied the 

motion to reconsider dismissal of objections. 

2. The trial court erred in denying the motion to reconsider 

dismissal of objections because a final judgment entry had not even been 

prepared by the magistrate after the trial until required to do so by the Sixth 

District Court of Appeals. 

Background Facts

{¶ 3} Appellee, M.S., and appellant, J.S., are parents to A.S., born on July 11, 

2016. Appellee and appellant are unmarried, but had purchased a house together and 

were in a relationship at the time of A.S.’s birth. The relationship ended around May 1, 

2018, when appellant moved from the couple’s home with A.S. In the months that 

followed, the couple cooperated in sharing parenting time and sharing the expenses for 

A.S., with each parent having time with A.S. every week day and on alternating 

weekends. On September 14, 2018, appellee filed a complaint for parentage, seeking a 

court-ordered, shared parenting plan and determination regarding child support. 

{¶ 4} The matter proceeded to hearing before a magistrate on appellee’s motion to 

establish parenting rights. After considering the child’s best interest, the magistrate 

adopted the proposed shared parenting plan of appellee, with modifications. The 

magistrate ordered counsel for appellee to submit a revised entry addressing the 

modifications within two weeks, which appellee filed. The magistrate’s decision, dated 
3.

June 25, was filed July 9, 2019. The decision included notice of the time to file written 

objections “as required by Juvenile Rule 40[.]” 

{¶ 5} On July 11, 2019, appellant filed a notice of objections to the magistrate’s 

decision that challenged the factual findings, and requested transcripts for the hearing. In 

an entry dated July 19, 2019, the trial court granted appellant’s request for a transcript, 

noting appellant had 30 days to supplement her objections after filing the transcript of the 

hearing. Appellant filed no transcripts. 

{¶ 6} On August 26, 2019, the trial court issued its decision on appellant’s 

objections to the magistrate’s decision. After noting appellant’s failure to make “the 

necessary arrangements to procure the trial transcript,” the trial court denied the 

objections and adopted the magistrate’s decision regarding the shared parenting plan. 

{¶ 7} Appellant filed a motion seeking reconsideration of this decision, arguing 

the trial court did not provide a “specific time restraint for ordering the transcript.” On 

September 17, 2019, the trial court denied appellant’s motion to reconsider, finding a lack 

of good cause to excuse appellant’s failure to file the transcript required by Juv.R. 

40(D)(3)(b)(iii). 

{¶ 8} On October 10, 2019, appellant filed her appeal of the denial of her motion 

to reconsider. We remanded the matter to the trial court for entry of a final order, 

incorporating the parties’ shared parenting plan, and on January 14, 2020, appellant filed 

an amended notice of appeal from this entry. 

 
4.

Applicable Law and Standard of Review 

{¶ 9} Appellant filed timely objections to the magistrate’s decision, challenging 

the factual findings of the magistrate, but failed to file a transcript and supplement her 

objections. Pursuant to Juv.R. 40(D)(3)(b)(iii), “[t]he objecting party shall file the 

transcript or affidavit with the court within thirty days after filing objections unless the 

court extends the time in writing[.]” Without a transcript, “the trial court is required to 

accept the magistrate’s findings of fact as true, and is permitted to examine only the legal 

conclusions based on those facts.” In re M.W., 6th Dist. Lucas No. L-11-1241, 

2012-Ohio-2959, ¶ 6, citing Beaverson v. Beaverson, 6th Dist. Wood No. WD-06-080, 

2007-Ohio-3560, ¶ 3; see also Joann S. v. Khalid R., 6th Dist. Lucas No. L-07-1363, 

2008-Ohio-5801, ¶ 15. 

{¶ 10} Appellant’s assigned errors challenge the trial court’s denial of her motion 

for reconsideration. We review a trial court’s decision on a motion for reconsideration of 

an interlocutory order for an abuse of discretion. Klocinski v. American States Ins. Co.,

6th Dist. Lucas No. L-03-1353, 2004-Ohio-6657, ¶ 12, citing Vanest v. Pillsbury Co.,

124 Ohio App.3d 525, 535, 706 N.E.2d 825 (4th Dist.1997), abrogated by statute on 

other grounds as stated by State ex rel. O’Malley v. Russo, 156 Ohio St.3d 548, 2019-

Ohio-1698, 130 N.E.3d 256, ¶ 17. To find an abuse of discretion, we must find that the 

trial court acted unreasonably, arbitrarily, or unconscionably, beyond any potential error 

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). 
5.

Argument 

{¶ 11} Appellant argues the trial court’s denial of her motion for reconsideration 

was an abuse of discretion, because the trial court failed to provide notice that a failure to 

file transcripts would result in dismissal and because no final judgment had been entered 

at the time appellant requested reconsideration. She contends that the trial court extended 

the time for preparing and filing the transcripts in its July 19, 2019 entry, and therefore, 

the trial court erred in not considering her objections prior to adopting appellee’s sharedparenting plan with modifications. In support, she argues the trial court misapplied 

Juv.R. 40(D). Additionally, appellant challenges the propriety of the trial court’s 

adoption of the magistrate’s decision, incorporating the modified shared-parenting plan, 

without assigning this as a separate error for appeal. 

{¶ 12} Appellee argues the language of Juv.R. 40(D) is clear in providing the time 

for filing a transcript, and the trial court had no obligation to provide any notice to 

appellant regarding the procedural requirements stated within the rule. Appellee also 

argues that the trial court’s adoption of the magistrate’s decision, including the modified 

shared-parenting plan, was consistent with the law and occurred after appellant failed to 

properly pursue her objections. 

Analysis 

{¶ 13} Appellant’s two assignments of error challenge the trial court’s denial of 

her motion for reconsideration. Accordingly, we address these assigned errors together. 
6.

{¶ 14} Appellant claims the trial court extended the deadline for filing transcripts 

within its July 19 order, because the order was silent on the deadline for filing, and only 

specified a deadline for filing supplemental objections. Appellant construed the trial 

court’s silence as a waiver of the 30-day requirement under Juv.R. 40(D), and argues that 

imputing knowledge of the rule to her was unreasonable, considering the fact that the trial 

court had not yet entered a final judgment in the matter. 

{¶ 15} The requirements of Juv.R. 40(D)(3)(b)(iii) are clear, and pertain to 

objections to a magistrate’s decision, not final judgments. Where objections to the 

factual findings of a magistrate are asserted, the objecting party shall support the 

objections with “a transcript of all the evidence submitted to the magistrate,” with the 

rule directing the objecting party to “file the transcript * * * with the court within thirty 

days after filing objections unless the court extends the time in writing for preparation of 

the transcript or other good cause.” 

{¶ 16} Appellant does not claim that she requested and received a written 

extension to file the transcript. The entry upon which appellant relies, moreover, 

provided an extension to file supplemental objections and not the transcript. Because 

appellant failed to comply with the filing requirements relative to the transcript, the trial 

court had no choice but to overrule her objections to the magistrate’s factual findings. 

See H.H. v. J.L., 6th Dist. Lucas No. L-12-1217, 2013-Ohio-4522, ¶ 5. 

{¶ 17} Appellant asks us to find the trial court abused its discretion in denying her 

motion for reconsideration of the trial court’s ruling on her objections, based on a 
7.

claimed misapplication of Juv.R. 40(D)(3). We find, however, that the trial court 

complied with the rule while appellant did not. Furthermore, appellant’s argument 

relative to the lack of a final, appealable order is of no consequence. The issue on appeal 

concerns appellant’s objections to the magistrate’s decision, pursuant to Juv.R. 40(D), 

and a magistrate’s decision is not a final judgment. See Juv.R. 40(D)(4)(a) (“A 

magistrate’s decision is not effective unless adopted by the court.”). 

{¶ 18} Finally, we note that appellant challenges the trial court’s adoption of the 

magistrate’s decision, but failed to assert this as an assignment of error. We determine an 

appeal on the merits based on the assignments of error in the briefs as provided by 

App.R. 16, and not based on mere arguments. Jensen v. AdChoice, Inc., 6th Dist. Lucas 

No. L-14-1014, 2014-Ohio-5590, ¶ 23, fn. 4, citing Bonn v. Bonn, 10th Dist. Franklin No. 

12AP-1047, 2013-Ohio-2313, ¶ 9. Even so, because appellant challenged the factual 

findings of the magistrate but failed to file the transcript with her objections, the trial 

court was correct in overruling the objections. See H.H. at ¶ 5. 

{¶ 19} Accordingly, finding no merit in the assigned or argued errors, we 

determine the trial court was within its discretion in denying appellant’s motion for 

reconsideration. Appellant’s assignments of error are found not well-taken. 

{¶ 20} For the forgoing reasons, the judgment of the Lucas County Court of 

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of 

this appeal pursuant to App.R. 24. 

Judgment affirmed. 
8.

 M.S. v. J.S. 

 C.A. No. L-19-1234 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Christine E. Mayle, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.