[Cite as Ellison v. Ellison, 2013-Ohio-3769.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

MICAH ELLISON, : 

 : 

Plaintiff-Appellee, : Case No. 12CA25 

 : 

vs. : 

: DECISION AND JUDGMENT

CRYSTAL ELLISON, : ENTRY

 : 

Defendant-Appellant. : Released: 08/22/13 

_____________________________________________________________ 

APPEARANCES:

Justin W. Skaggs, Skaggs Law Office, Jackson, Ohio, for 

Intervenor/Appellant, Michael Nelson. 

Frederick C. Fisher, Jr., McCown & Fisher, LPA, Ironton, Ohio, for 

Plaintiff/Appellee, Micah Ellison. 

Warren Morford, Jr., South Point, Ohio, for Defendant/Appellant, Crystal 

Ellison. 

Courtney Zolman-Walters, South Point, Ohio, Guardian Ad Litem.1

_____________________________________________________________ 

McFarland, P.J. 

{¶1} Michael Nelson, Appellant herein and Intervenor below, appeals 

from the judgment of the Lawrence County Court of Common Pleas 

adopting the magistrate’s decision granting Micah and Crystal Ellison a 

 

1

 Crystal Ellison and Courtney Zolman-Walters have failed to file briefs or otherwise participate in this 

appeal because Ms. Ellison’s appeal was voluntarily dismissed on April 29, 2013. 
Lawrence App. No. 12CA25 2

divorce, and naming Micah Ellison as the residential parent of K.E.2 

Appellant’s intervention in the case below was based upon his assertion that 

he, rather than Micah Ellison, was the biological father of K.E.. On appeal, 

Appellant contends that 1) the trial court erred and denied him due process 

when it failed to permit him to participate in the final hearing, where he 

appeared and asserted his desire to participate; and 2) that the trial court 

erred by failing to serve him with a copy of the final appealable order. 

{¶2} Because the record indicates that Appellant was provided proper 

notice of the final hearing, appeared at the hearing, and was given the 

opportunity to present evidence but declined, we cannot conclude that the 

trial court prohibited him from participating. Thus, we find no merit to 

Appellant’s first assignment of error and therefore it is overruled. 

{¶3} However, because we conclude that the trial court erred in failing 

to serve Appellant with a copy of the magistrate’s decision, which decision 

also lacked the required language required under Civ.R. 53, we must remand 

this matter to the trial court in order for the magistrate to prepare a decision 

in the proper form, and to provide the necessary service upon Appellant. 

Thus, Appellant’s second assignment of error is sustained. Accordingly, the 

 

2

 Micah and Crystal Ellison have two other children, the paternity of which was not challenged below and 

is not at issue in the present appeal. 
Lawrence App. No. 12CA25 3

decision of the trial court is reversed and remanded for further proceedings 

consistent with this opinion. 

FACTS 

{¶4} Appellees, Micah and Crystal Ellison, were married on May 30, 

2002, and three children were born during the marriage. Micah Ellison filed 

a complaint for a divorce on August 27, 2010, alleging as part of the divorce 

filings that he was the natural parent of all three children born during the 

parties’ marriage, including the third and youngest child, K.E., who was 

born on January 16, 2008. The parties initially were granted shared 

parenting of the children, however, that arrangement soon proved 

problematic and was followed with a series of contempt and emergency 

custody motions. 

{¶5} On January 23, 2012, on the morning of the scheduled divorce 

hearing, Michael Nelson filed a motion to intervene in the matter, claiming 

that DNA testing had confirmed that he was the biological father of K.E. A 

magistrate’s decision filed on January 31, 2012, found Nelson’s motion to be 

well taken and ordered Nelson, Crystal Ellison, and K.E. to submit to DNA 

testing at the Lawrence County Department of Job and Family Services. 

Although Micah Ellison objected to the magistrate’s decision to allow 
Lawrence App. No. 12CA25 4

Nelson to intervene, the trial court, by entry dated May 10, 2012, found 

Nelson had grounds to intervene and again ordered DNA testing. 

{¶6} The divorce proceedings came on for final hearing again on June 

28th and 29th, 2012. Nelson was provided notice of the scheduled hearing 

and actually appeared at the hearing, albeit without counsel. The record 

indicates that Nelson’s attorney was not present at the hearing as he was on 

vacation. As will be discussed more fully, infra, the trial court inquired as to 

whether Nelson intended to ask questions during the proceeding to which 

Nelson responded in the negative. The court gave Nelson the option to stay 

or leave, after which it appears Nelson left. Noting that Nelson’s counsel 

had not contacted the court regarding obtaining a continuance, the court 

proceeded to conduct the hearing. 

{¶7} A magistrate’s decision was issued on August 20, 2012. The 

record reflects that neither Nelson nor his counsel were served with a copy 

of the decision. As such, Nelson did not file objections to the magistrate’s 

decision. A final, appealable order was subsequently filed by the trial court 

on October 22, 2012, followed by an amended final, appealable order on 

October 31, 2012. Nelson was not served with either of these orders. 

Nonetheless, Nelson filed a timely appeal from the amended final order, 

setting forth the following assignments of error for our review. 
Lawrence App. No. 12CA25 5

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED BY FAILING TO PERMIT 

APPELLANT TO PARTICIPATE IN THE FINAL HEARING 

WHERE APPELLANT APPEARED AND ASSERTED HIS DESIRE 

TO PARTICIPATE DENYING APPELLANT-NELSON DUE 

PROCESS OF LAW IN CONTRAVENTION OF THE 14TH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND 

ARTICLE 1 §16 OF THE OHIO CONSTITUTION. 

II. THE TRIAL COURT ERRED BY FAILING TO SERVE 

APPELLANT-NELSON WITH A COPY OF A FINAL 

APPEALABLE ORDER IN CONTRAVENTION OF O. CIV. R. 

58(b) AND IN CONTRAVENTION OF THE 14TH AMENDMENT 

TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 

§16 OF THE OHIO CONSTITUTION.” 

ASSIGNMENT OF ERROR I 

{¶8} In his first assignment of error, Nelson contends that the trial 

court erred and denied him due process when it failed to permit him to 

participate in the final hearing. Micah Ellison counters by arguing that 

Nelson was given the opportunity to participate in the hearing, but failed to 

take advantage of the opportunity. Based upon our review of the hearing 

transcript, we agree with Ellison, and therefore find no error or deprivation 

of due process on the part of the trial court. 

{¶9} The record indicates that the final divorce was held over a period 

of two days beginning on June 28, 2012. Nelson appeared at the hearing 

alone, explaining that his counsel was out of town. The transcript indicates 

that in response to Nelson’s appearance at the hearing, the court stated that 
Lawrence App. No. 12CA25 6

“[t]here had previously been an entry preventing you to intervene in this 

matter. But there’s not been any thing else filed.” (Emphasis added). 

Nelson places much emphasis on this sentence in the transcript, arguing that 

the trial court was under the impression that Nelson had been prohibited 

from intervening, and therefore prohibited him from participating in the 

hearing. However, reading the transcript as a whole, and taking into 

consideration the multiple entries in the record indentifying Nelson’s status 

as an intervenor, it appears that the word “preventing” was a transcription 

error that should have read “permitting.” We arrive at this conclusion based 

upon the context of the sentence overall, as well as our review of the entire 

transcript, which included multiple transcription or typographical errors and 

misspellings. For instance, two pages later in the transcript, a word that 

obviously should have been transcribed as “continuance,” appears in the 

record as “continence.” These are just two examples of the many errors 

contained in the transcript. 

{¶10} Further, a review of the hearing transcript reveals that the trial 

court would have permitted Nelson to participate had he chosen to; however, 

when given the option, he declined. For instance, the following exchange 

appears in the transcript: 
Lawrence App. No. 12CA25 7

“COURT: Do you anticipate participating in today’s hearing 

as an advocate somewhat? 

A. Yes sir I do. 

COURT: How so? 

A. Trying to see my son. 

COURT: Well there is no motion filed for that. I mean I 

guess Mr. Skaggs is he still representing you? 

A. Yes sir. 

* * * 

COURT: Do you intend to ask any questions during today’s 

proceedings sir? 

A. No sir what I had was a paper that was also um just 

proved for the DNA and I just showed here my 

attendance was required for today’s date for the 

29th sir. 

* * * 

COURT: It’s up to you if you want to hang around but I 

don’t know if either one of these gentlemen is 

going to call you as a witness or not. And Mr. 

Skagg. . . 
Lawrence App. No. 12CA25 8

A. I think maybe that was the main reason to be here 

in case they needed me for a witness. 

COURT: And Mr. Skaggs apparently didn’t intend on 

presenting any evidence today because he’s not 

contacted our office or the court regarding a 

continence [sic] or a scheduling conflict with his 

office so. 

A. Right. Like you said your Honor I didn’t know if 

maybe he just wanted me here in case I was 

needed. 

COURT: I will assume that’s why you’re here then and you 

can have a seat out in the hallway if you wish or 

you can leave if you wish.” 

{¶11} A review of this exchange indicates no action on the part of the 

trial court to prevent Nelson from participating in the final hearing. Instead, 

it reveals that the court diligently tried to determine Nelson’s intentions in 

attending the hearing, which according to Nelson did not include presenting 

evidence or asking questions, but rather only to be available as a witness if 

called. Based upon the foregoing, we cannot conclude that the trial court 

prevented Nelson from participating in the final hearing. Although the 
Lawrence App. No. 12CA25 9

situation is unfortunate in that Nelson’s counsel was not present, there was 

no denial of due process on the part of the court. Accordingly, Nelson’s first 

assignment of error is overruled. 

ASSIGNMENT OF ERROR II 

{¶12} In his second assignment of error, Nelson contends that the trial 

court erred by failing to serve him with a copy of the final, appealable order, 

in contravention of Civ.R. 58(B). In his brief, Nelson also points out that he 

was not served with a copy of the magistrate’s decision either. Based upon 

the following reasoning, we find Nelson’s failure to be served a copy of the 

magistrate’s decision requires reversal and a remand to the trial court. 

{¶13} Civ.R. 53(D)(3)(a)(iii) states as follows with respect to the 

form, filing and service of a magistrate’s decision: 

“A magistrate's decision shall be in writing, identified as a 

magistrate's decision in the caption, signed by the magistrate, 

filed with the clerk, and served by the clerk on all parties or 

their attorneys no later than three days after the decision is filed. 

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 
Lawrence App. No. 12CA25 10

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).” 

Nelson was permitted to intervene in the matter below and was identified 

and served as an intervenor in several court entries. Further, Nelson was 

provided with notice of the final hearing and, as discussed above, appeared 

at the final hearing, albeit without counsel. Clearly Nelson was a party to 

the case and should have been served, either personally or through his 

counsel, with a copy of the magistrate’s decision. 

{¶14} Further, upon review of the magistrate’s decision that is 

contained in the record, we also note that it appears the decision failed to 

contain the language set forth in Civ.R. 53(D)(3)(a)(iii) which requires that 

the decision conspicuously state the following: 

“* * * 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).” 
Lawrence App. No. 12CA25 11

{¶15} The Ninth District Court of Appeals recently held in Keller v. 

Keller, 9th Dist. App. No. 25967, 2012-Ohio-4029, at ¶ 7 that where a 

magistrate’s decision fails to notify the parties of the need to file objections, 

reversal and remand for the preparation of a magistrate’s decision in 

compliance with Civ.R. 53(D)(3)(a)(iii) is the appropriate remedy. See also, 

Ball v. Meier, 9th Dist. App. No. 26079, 26109, 2012-Ohio-5864, at ¶ 21 

(finding the notice on the magistrate’s decision that referenced an incorrect 

section under Civ.R. 53 prejudiced the appellant and that such error was not 

harmless.); See, also May v. May, 4th Dist. No. 11CA910, 2012-Ohio-2348, 

¶ 25 (concluding that the appellant did not waive all but plain error as a 

result of his failure to timely file objections to the magistrate’s decision 

when the clerk failed to timely serve the appellant). 

{¶16} Based upon the foregoing reasoning, we conclude that the facts 

sub judice require reversal and remand to the trial court. Here, the record 

indicates that not only did the magistrate’s decision fail to include language 

required by Civ.R. 53, but also the clerk failed to serve Nelson, who was an 

intervenor and party to the case, with a copy of the magistrate’s decision, 

thus precluding him from timely filing objections to that decision. As such, 

Appellant’s second assignment of error is sustained. Accordingly, the 

decision of the trial court is reversed and this matter is remanded for the 
Lawrence App. No. 12CA25 12

purposes of preparing a Civ.R. 53 compliant magistrate’s decision, and for 

proper service to be made upon Michael Nelson. 

 JUDGMENT REVERSED 

 AND CAUSE REMANDED. 
Lawrence App. No. 12CA25 13

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS REVERSED and that the 

CAUSE IS REMANDED. Appellee shall pay the costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Lawrence County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Abele, J. & Hoover, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland 

Presiding Judge 

NOTICE TO COUNSEL

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.