[Cite as In re S.L.M. , 2019-Ohio-5403.]

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

IN RE: S.L.M. C.A. No. 29482

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 18 09 0921

DECISION AND JOURNAL ENTRY Dated: December 31, 2019

CALLAHAN, Presiding Judge. {¶1} Appellant, D.D. (“Father”), appeals from a judgment of the Summ it County Court of Common Pleas, Juvenile Division, that vacated its prior judg ment that placed S.L.M. in the legal custody of Father. Th is Court reverses and remands.

I. {¶2} Father and Mother are the biological parents of S.L.M., born Fe bruary 24, 2009. Mother has two other children who were parties to the trial cou rt case, but they are not Father’s children and are not partie s to this appeal. {¶3} On September 20, 2018, Summit County Children Services Board (“ CSB”) filed a complaint, alleging that S.L.M. was a neglected and dependent c hild because Mother was abusing drugs and otherwise failing to meet the child’s needs. CSB sought an initial disposition of temporary custody to Father, who did not live with Mother, w ith protective supervision by CSB. Father was granted emergency temporary custody the same d ay.2

{¶4} S.L.M. was later adjudicated a neglected and dependent child an d placed in the temporary custody of Father. S hortly afterward, Father moved f or legal custody of S.L.M. On February 25, 2019, the trial court issued an order scheduling a review hearing for March 15, 2019, and explained that Father’s motion for legal custody woul d be considered at that hearing. Because Mother was not then represented by counsel, the order f urther stated that “[i]t is important that Mother immediately see the bailiff and submit an application for the appointment of an attorney.” {¶5} Upon the motion of the guardian ad litem, the hearing was conti nued until May 1, 2019. At the May 1 hearing before a magistrate, Mother appeare d and requested a continuance so she could obtain counsel. The magistrate orally denied Moth er’s request for a continuance and proceeded with the hearing on Father’s motion for legal cus tody. The magistrate did not file a dispositional decision, however , until several weeks later. {¶6} In the meantime, Mother requested and was appointed trial couns el. On May 31, 2019, the magistrate’s dispositiona l decision was filed. The d ecision, which was adopted the same day by the trial court, placed S.L.M. in the legal custody of Father. It is unclear from the record whether the magistrat e’s decision was served on Mother’s newly appointed trial counsel. {¶7} After the hearing but before the magistrate’s decision was file d, Mother filed pro se objections to the magistrate ’s decision. The Ohio Supreme C ourt has held that premature objections to a magistrate’s decision are deemed filed as of th e date of the magistrate’s decision

and should be considered on the merits. See Gordon v. Gordon , 98 Ohio St.3d 334, 2003-Ohio1069, syllabus. The trial court wa ited until after the magistr ate’s decision was filed and allowed Mother time to request a transcript of the hearing. Because Mo ther did not supplement her objections with a transcript of the proceedings, the trial cour t did not consider her objections on3

the merits. The trial court overruled Mother’s pro se objectio ns and placed S.L.M. in the legal custody of Father on June 25, 2019. {¶8} Mother did not appeal from the trial court’s final judgment. I nstead, on July 8, 2019, Mother’s appointed trial couns el filed a “Motion for Leav e and Reconsideration.” Counsel stated that she had not received a copy of the magistrate’s dec ision and initial trial court order awarding Father legal custody and, therefore, she had not filed timely objections to the magistrate’s decision. Counsel further asserted that it was no t until she received the trial court’s June 25 judgment overruling Mother’s pro se objections that she realized that the magistrate had issued a decision on the legal custody motion. She gave no fur ther details about the alleged defect in service, nor did she attach an affidavit or any other evidence to support her assertions that she had not been served with the magistrate’s decision. C ounsel requested leave to have a transcript prepared and to file pr oper objections to the magist rate’s legal custody decision. {¶9} The trial court construed the motion as a motion for relief fro m judgment filed pursuant to Civ.R. 60(B) and granted the motion. The trial cou rt vacated the legal custody judgment and granted Mother’s counsel time to obtain a transcri pt of proceedings and file objections on behalf of Mother. Fat her appeals and raises one assignment of error.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING MOTHER’S MOTION FOR RELIEF FROM JUDGMENT UNDER CIV.R. 60(B). {¶10} Father’s sole assignment of error is that the trial court erred in granting Mother relief from judgment under Civ.R. 60(B). Mother’s motion was captioned as a motion for

reconsideration and leave to f ile a transcript and objections t o the magistrate’s decision. As4

Father correctly asserts, a mo tion for reconsideration of a fin al trial court judgment is a nullity, as “[t]he procedure for obtaining any relief from a judgment shall be by motion as prescribed in [the Ohio Civil] rules.” Civ.R. 60(B). A trial court has authority to provide relief from a final judgment only “by means of Ci v.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59 (motion for a new trial), and Civ.R. 60(B) (motion for relief f rom judgment).” Pitts v. Ohio Dept. of Transp ., 67 Ohio St.2d 378, 380 (1981). {¶11} Although Mother did not caption her motion as one filed pursuan t to Civ.R. 60(B), the trial court was permitted to construe her motion “in to whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12; see also Jones v. Jones , 4th Dist. Athens No. 14CA33, 2015-Ohio-3650, ¶ 13 (applying Schlee in a civil case). The trial court construed Mother’s motion as one filed pursu ant to Civ.R. 60(B). {¶12} To prevail on a Civ.R. 60(B) motion to vacate judgment, however , a movant must demonstrate: (1) a meritorious d efense or claim to present if r elief is granted; (2) that he is

entitled to relief under one of the grounds stated in Civ.R. 60 (B)(1)-(5); and (3) that the motion is

made within a reasonable time. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150 (1976). The determination of whether relief should be granted is within the sound

discretion of the trial court. Griffey v. Rajan , 33 Ohio St.3d 75, 77 (1987). {¶13} Mother’s sole claim to support her motion was that her trial co unsel was appointed after the hearing, for the purpose of filing objectio ns to the magistrate’s decision, but

that her counsel never received a copy of the decision. Based upon the alleged defect in service, counsel sought leave to file objec tions to the magistrate’s dec ision.5

{¶14} On appeal, Father asserts that Mot her could have raised the lac k of proper service issue on appeal and Civ.R. 60(B) cannot be used as a substitute for appeal. See , e.g ., McWilliams

v. McWilliams , 9th Dist. Summit No. 29172, 2019-Ohio-2415, ¶ 12. A defect i n service may be raised on appeal if it can be demonstrated on the face of the t rial court record. In this case, however, the record is unclear about whether Mother’s counsel w as served with the magistrate’s decision, as it includes instruc tions from the trial court to s erve all parties and their counsel, but

Mother’s counsel is not liste d on the address list included in the record at that time. {¶15} This Court has recognized that i f a party otherwise complies wi th the requirements of GTE Automatic and presents evidence outside the record to demonstrate that h er failure to meet a filing deadline was caused by of a lack of no tice of a trial court’s order, Civ.R. 60(B) relief may be appropriate. See Kowalski v. Smith , 9th Dist. Wayne No. 11CA0056, 2012- Ohio-2974, ¶ 14. Mother would not h ave been able to obtain rel ief on appeal if her argument

relied on evidence outside the record. See , e.g ., In re T.R ., 9th Dist. Summit No. 28619, 2018- Ohio-1144, ¶ 8 (emphasizing that this Court’s appellate review is necessarily confined to the trial court record). {¶16} Mother did not support her motion with any detailed explanation about her failure to receive timely service, however, nor did she attach any evid ence to demonstrate that her counsel was not served. “Although a movant is not required to support its motion with evidentiary materials, the movant must do more than make bare a llegations that he or she is

entitled to relief.” Kay v. Marc Glassman, Inc. , 76 Ohio St.3d 18, 20 (1996). Mother’s motion included nothing more than bare allegations that her trial coun sel was not timely served with the magistrate’s decision.6

{¶17} Consequently, the trial court erred in granting Mother relief u nder Civ.R. 60(B) without anything other than bare allegations to support her mot ion. For these reasons, Father’s assignment of error is sustained.

III. {¶18} For the reasons explained above, the assignment of error is sus tained. The judgment of the Summit County Court of Common Pleas, Juvenile D ivision, is reversed and remanded for proceedings c onsistent 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, direc ting the Court of Common Pleas, County of Summit, 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

LYNNE S. CALL AHAN FOR THE COURT7

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: NEIL P. AGARWAL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee. DENISE FERGUSON, Attorney at Law, for Appellee. ANNETTE POWERS, Guardian ad Litem.