[Cite as In re M.O. , 2017-Ohio-7691.]

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

IN RE: M.O. C.A. Nos. 28351 28371 28383

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 15-02-120

DECISION AND JOURNAL ENTRY Dated: September 20, 2017

CARR, Judge. {¶1} Appellant Father appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that granted legal cust ody to Mother. He also appeals the juvenile court’s subsequent nunc pr o tunc order addressing visitation. Mother too filed a notice of appeal from the trial court’s dispositional order. The th ree appeals have been consolidated for purposes of briefing, argument, and disposition. This Co urt affirms the dispositi onal order, vacates the nunc pro tunc order, and di smisses Mother’s appeal.

I. {¶2} Mother and Father enjoyed parental ri ghts and responsibilities regarding their child M.O. pursuant to a shared parenting order issued by the Stark County Family Court, Juvenile Division. In February 2015, Summit Count y Children Services Board (“CSB”) filed a complaint alleging the child to be dependent based, in part, on an act of intimate partner violence2

committed by Father against his live-in paramour and witnessed by the child in Father’s home. CSB requested an order of protective supervision, which the magistrate granted on an interim basis. Based on evidence heard at the adjudica tion hearing, the juvenile court found M.O. to be a dependent child. After the initial dispositional hearing, the trial court ordered that the child remain under the protective supervision of the agency, and that the parents otherwise comply with the terms of the agreed shared parenting plan entered in Stark County Family Court case

numbers 2013 JCV 00300 1 and 2010 DR 00908. {¶3} All parties filed dispositional motions: CSB moved to terminate protective supervision; Mother moved for legal custody; and Father moved for legal custody, or in the alternative, to modify the shared parentin g plan regarding visitation. After conducting a dispositional hearing, the magistrate placed the child in the legal custody of Mother; terminated protective supervision; granted Father visitation with the child from Thursday through Monday during the first three weeks of each month; or dered the parties to abide by the Stark County Parenting Time Schedule for vacations, holidays, and days of special meaning; and ordered Father to pay child support. Both the paren ting time schedule and child support worksheet were

attached to the decision. The trial cour t adopted the orders the same day. {¶4} Father filed timely objections to the magi strate’s decision. He argued that the magistrate erred by considering only the best interest of the child, because the award of legal custody to Mother effectively modified the parents’ prior shared parenting agreement. Father argued, therefore, that the magistrate was required to determine custody in consideration of (1) whether a change in circumstances of the child, the child’s residential parent, or either parent subject to the shared parenting decree had occu rred, and (2) the best interest of the child,

1 The child was previously adjudicated depe ndent by the Stark County Juvenile Court.3

pursuant to R.C. 3109.04(E)(1)(a). He also challe nged the disposition as against the manifest weight of the evidence. {¶5} Mother responded in opposition, arguing that the award of legal custody did not modify the parties’ prior shared parenting agreement, but rather terminated it. She argued, therefore, that the matter was governed by R. C. 3109.04(E)(2)(c), addressing the standard for terminating a prior final shared parenting decree. That provision require s consideration merely of whether shared parenting is in the best intere st of the child without consideration of whether a change in circumstances had occurred. {¶6} The juvenile court acknowle dged that the parties had been subject to a prior shared parenting agreement, but rejected the arguments that the court must render a final disposition for the child in consideration of R.C. 3109.04. Instead, the ju venile court relied on

this Court’s decision in In re O.L. , 9th Dist. Summit No. 24928, 2010-Ohio-878, ¶ 7, for the proposition that, after a child has been adjudicated dependent, negl ected, or abused, the juvenile court need only consider the best interest of the child when determining whether to place a child in the legal custody of any person. The juvenile c ourt then looked to the best interest factors set forth in R.C. 2151.414(D) (relevant to a deter mination of permanent custody) and R.C. 3109.04(F)(1) (relevant to a determination of the allocation of parental rights and responsibilities) for guidance. The juvenile c ourt overruled Father’s objections and placed the child in the legal custody of Mother. In additi on, the court ordered specific weekly visitation for Father; that the parties would a dhere to the Stark County Paren ting Time Schedule for holidays, vacations, and days of special meaning; and child support from Father. Both Father and Mother filed timely notices of appeal from the August 17, 2016 dispositional order.4

{¶7} In addition, Mother wrote a letter to the juvenile court requesting clarification regarding Father’s visitation with the child. The magistrate had ordered that Father would have visitation the first three weekends of every mont h, but that Mother would retain the child during the last weekend. When the juvenile court overruled Father’s objecti ons and independently entered judgment, however, it orde red simply that Father would have visitation with the child every weekend. Father opposed Mother’s motion fo r an order clarifying that she was entitled to keep the child the last weekend of every m onth. On September 22, 2016, the juvenile court issued a nunc pro tunc order amending the visita tion order to indicate that Mother has the child the fourth weekend of every month. Father filed a timely appeal from the September 22, 2016

order. {¶8} This Court consolidated the three appeals for review.

II. Appeal No. 28351 {¶9} In this appeal, Father challenges the juvenile court’s August 17, 2016 dispositional order, raising three assignments of error. We addr ess some assignments of error

out of order to facilitate review.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ORDERING FATHER TO PAY CHILD SUPPORT WITHOUT ATTACHING OR INCORPORATING A CHILD SUPPORT WORKSHEET TO ITS JUDGMENT ENTRY. {¶10} Father argues that the juvenile court’s “o rder requiring Father to pay child support was defective and void[,]” because the court failed to attach a child support worksheet to the judgment. This Court disagrees.5

{¶11} It is well settled that, in issuing an order for child support, a child support worksheet must be completed and made a part of the record. Marker v. Grimm , 65 Ohio St.3d 139 (1992), paragraph one of the syll abus. In reliance on that holding, this Court recognizes that it is sufficient that the child support worksheet be attached to the magistrate’s decision that has been approved by the trial court. See, e.g., Hayne v. Hayne , 9th Dist. Medina No. 07CA0100-M, 2008-Ohio-4296, ¶ 19. To the extent that Father re quests reversal and remand to the juvenile court for incorporation of the child support worksh eet into the final judg ment, the trial court’s adherence to its prior order does just that. Fath er’s third assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ORDERING THE PARTIES TO ABIDE BY A PARENTING TIME SCHEDULE WITHOUT ATTACHING THE SCHEDULE TO ITS JUDGMENT ENTRY. {¶12} Father argues that the juvenile court erred by failing to attach the Stark Family Court Parenting Time Schedule to its judgment wherein it overruled Father’s objections and adopted the magistrate’s decision. This Court disagrees. {¶13} Father argues that the visitation order is defective because it does not incorporate all documents necessary to give the parties an understanding of their rights and obligations. However, when the juvenile court initially ad opted the magistrate’s decision, it ordered the attachment of the parenting time schedule. Notwithstanding Father’s assertion to the contrary, the juvenile court’s initial adop tion of the magistrate’s decisi on was not a mere interlocutory order, but rather a final judgment. See Miller v. Miller , 9th Dist. Medina No. 10CA0034-M, 2011-Ohio-4299, ¶ 17-18. Later, in overruling Fathe r’s objections, the juve nile court enunciated a visitation order, including that the parties would abide by the Stark Family Court Parenting

Time Schedule. The trial court fu rther ordered that “[a]ll prior orde rs not in direct conflict with6

the orders herein remain in full force and effect[,]” effectively adhering to its prior order to that extent and, thereby, incorporating the terms of the paren ting time schedule. See Juv.R. 40(D)(4)(e)(i). Father seeks reversal and remand for the express purpose of requiring the juvenile court to incorporate the parenting time schedule into its judgment. As the juvenile court’s adherence to its prior judgment does that, Father has received the relief he seeks. Father’s second assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN AWARDING MOTHER LEGAL CUSTODY WITHOUT CONSIDERING THE FACTORS UNDER R.C. 3109.04(E). {¶14} Father argues that the juvenile court erred by failing to consider whether there had been a change in circumstances as required by R.C. 3109.04(E)(1) before awarding legal custody to Mother, because the parties had been subject to a prior shared parenting agreement arising out of their earlier divorce. This Court disagrees. {¶15} An award of legal custody by the juvenile court will only be reversed for an abuse

of discretion. In re T.A. , 9th Dist. Lorain Nos. 15CA010858, 15CA010859, 2016-Ohio-5552, ¶ 5. Here, however, Father does not argue that the j uvenile court abused its discretion in deciding to award legal custody to Mother based on the evidence. Instead, Father argues that the juvenile court misinterpreted the statutory framework applicable to this matter and failed to apply the relevant statutory provision when awarding legal custody to Mother. A trial court’s interpretation and applica tion of a statute is an issue of la w, which this Court reviews de novo.

Gehlmann v. Gehlmann , 9th Dist. Medina No. 13CA0015-M, 2014-Ohio-4990, ¶ 6. “A de novo review requires an independent review of the tr ial court’s decision without any deference to the7

trial court’s determination.” Id. , quoting State v. Consilio , 9th Dist. Summit No. 22761, 2006- Ohio-649, ¶ 4. {¶16} Father relied on In re James , 113 Ohio St.3d 420, 2007-Ohio-2335, below for the proposition that, before the juven ile court could award legal cust ody to Mother, it had to apply the factors in R.C. 3109.04(E)(1)(a) and determin e not only whether the award was in the best interest of the child, but also whether a change in the child’s or either parent’s circumstances had

occurred. See 2007-Ohio-2335, at ¶ 14. The juvenile c ourt rejected Father’s argument, and concluded that R.C. 2151.353, which sets out the di spositional options for a child who has been adjudicated dependent, neglected, or abused, wa s applicable. R.C. 2151.353(A)(3) authorizes the juvenile court to award legal cu stody to a parent or third party. This Court has held that, in determining whether to award legal custody of a child adjudicated dependent, neglected, or abused, the sole consideration is the best interest of the child. In re O.L. , 9th Dist. Summit No. 24928, 2010-Ohio-878, ¶ 7. {¶17} On appeal, Father has abandoned his reliance on In re James

. 2 He now relies on In re Poling , 64 Ohio St.3d 211 (1992), in support of his argument that the juvenile court was required to apply R.C. 3109.04(E)(1)(a) in determining whether to grant legal custody to Mother.

2 In re James involved a child who, after being adjudicat ed abused and dependent, was placed in the legal custody of the grandparents pursuant to agreement of the parties. Id. at ¶ 5-6. After the grandparents challenged a subseque nt order restoring legal custody to the child’s parents, the Supreme Court of Ohio accepted an appeal to address the constitutionality of R.C. 3109.04(E)(1)(a), which was invoked below. Id. at ¶ 7-9. Recognizing the questionable application of R.C. 3109.04(E)(1)(a) to the proce dural posture of the underlying case, the high court nevertheless addressed the constitutional issue as it “arose from that statute and from the appellate court’s analys is and conclusion.” Id. at ¶ 24. In re James is distinguishable in two significant ways from the instant appeal. First, In re James involved a modification of a prior disposition that had been ordered after an adjudication, whereas this case involves an initial disposition after adjudication. S econd, and significantly, unlike in the instant matter, there is nothing in In re James to indicate that the child had been the subject of a prior custody order as to the mother and father issued by a domestic relations court.8

In re Poling stands for the initial proposition that, alt hough a child is the subject of a custody order issued pursuant to a divorce decree, the juvenile court has jurisdiction to determine the custody of that same child where the child is alleged to be dependent, neglected, or abused. Id. at paragraph one of the syllabus. The juvenile court assumes jurisdiction to issue a final custodial disposition after the child has been adjudicated dependent, neglected, or abused. R.C. 2151.353(A). The In re Poling court elaborated, however, holding that R.C. 2151.23(F)(1) requires the juvenile court to exercise its jurisdiction in child custody matters in accordance with

R.C. 3109.04. Id. at paragraph two of the syllabus. {¶18} In In re Poling , a mother was awarded custody of two children pursuant to the

terms of a divorce decree. Id. at 211. Some years later, the local children services agency filed a complaint alleging that the children were neglected and dependent. Id . The children were adjudicated dependent children, and the juvenile court ultimately awarded the father legal custody. Id. at 212. The appellate court reversed, c oncluding that the juvenile court lacked jurisdiction to modify the prior custody order issued pursuant to R.C. 3109.04. Id. at 212-213. The high court reversed the appella te court, concluding that the juvenile court had jurisdiction to modify the prior custody order, but that it must do so in accordance with R.C. 3109.04. Id. at

216. 3 {¶19} Assuming without deciding that the holding in paragraph two of the syllabus of In re Poling is applicable to this case, this Court concludes that any error by the juvenile court in refusing to apply R.C. 3109.04 was harmless. Although the In re Poling court referenced R.C.

3 To date, In re Poling has not been overruled or limited to cases excluding dependency, neglect, abuse actions. However, given the intervention of heightened concerns for the safety and wellbeing of children who have been adjudicated dependent; neglected; or abused; in addition to the various dispositional options available pursuant to R.C. 2151.353, the application of paragraph two of the syllabus of In re Poling may no longer be viable. To the extent that lower courts are still relying on it, the Supreme Court of Ohio may want to revisit it.9

3109.04(E)(1)(a), it did so on the basis that the juve nile court’s award of legal custody to the father constituted a modification of the prior divorce decree which allocated parental rights and responsibilities. In re Poling , 64 Ohio St.3d at 216-218. In the instant case, however, the parties were subject to an award of shared parenting fro m the prior Stark County case. By granting legal custody to Mother in this case, the juvenile court terminated the shared parenting order, rather than modified its terms. Even if the law require s the application of R.C. 3109.04 in this case, the applicable provision under thes e circumstances would be R.C. 3109.04(E)(2)(c), which provides that the court may terminate a shared parenting plan in consideration of the best interest of the child. R.C. 3109.04(E)(2)(c) does not require the c ourt to consider and determine whether there has been a change in the circumstances of the child or either parent before terminating the shared parenting plan. {¶20} In this case, in applying R.C. 2151.353 and c onsidering solely the best interest of the child, the juvenile court also complied with the standard enunciated in R.C. 3109.04(E)(2)(c) relevant to a termination of a prior shared pare nting plan. Assuming for the sake of argument that that provision applied to this matter, th e juvenile court’s app lication of R.C. 2151.353 and

the mandate of In re O.L. , 2010-Ohio-878, at ¶ 7, 4 was harmless error. Father’s fourth assignment of error is overruled. Judgment affirmed.

4 This Court recognizes that the instant case is analogous to In re O.L. in that in both cases the parents were subject to a prior custody order issued out of the domestic relations court at the time that the child was adjudicated dependent and th e juvenile court considered the issue of the child’s disposition. In In re O.L. , we affirmed the juvenile court’s award of legal custody to the father based solely on the best interest of the child. Id. at ¶ 7, 23. As no party challenged the juvenile court’s application of that standard or failure to consider the ramifications of the existence of a prior domestic relations court order, those issues were not before us.10

Appeal No. 28371 {¶21} Mother timely filed a notice of appeal from the juvenile court’s judgment of disposition issued August 17, 2016. She has failed, how ever, to file a merit brief or assert any assignments of error. As Mother has effectively abandoned her appeal, App. No. 28371 is

dismissed. See Badovick v. Badovick , 8th Dist. Cuyahoga Nos. 74273, 75116, 2000 WL 640589, *1 (May 18, 2000). Appeal No. 28371 dismissed. Appeal No. 28383 {¶22} Father appealed the juvenile court’s September 22, 2016 nunc pro tunc order in

which it modified the terms of visitation enunciated in the judg ment granting legal custody to

Mother.

ASSIGNMENT OF ERROR I

THE TRIAL COURT LACKED JURISDICTION TO ISSUE A NUNC PRO TUNC JUDGMENT ENTRY WITHOUT SEEKING LEAVE FROM THE COURT OF APPEALS AFTER THE APPEAL WAS ALREADY DOCKETED AT THE APPELLATE COURT. {¶23} Father argues that the juvenile court lacked jurisdiction to issue the September 22, 2016 nunc pro tunc order without leave of this C ourt, as Father’s notice of appeal from the dispositional order had been filed on August 25, 2016. This Court agrees. {¶24} Although Civ.R. 60(A) provides a mechanis m whereby a trial court may issue an order correcting clerical mistakes in judgments, once an appeal from the judgment is docketed and pending, the trial court may only issue a correction with leave of the appellate court. 5 In this case, the juvenile court issued its nunc pro tunc order almost a month after Father’s notice of

5 As Father does not argue in his assignme nt of error that the September 22, 2016 order improperly applies Civ.R. 60(A) to modify substantively a final order, rather than to correct a mere clerical error, this Cour t does not address that issue.11

appeal was docketed. No party or the juvenile c ourt sought leave from this Court to correct the August 17, 2016 judgment, as required by Civ.R. 60(A) . Accordingly, the juvenile court lacked jurisdiction to issue the September 22, 2016 or der, and that order is therefore void. See Evanich v. Bridge , 9th Dist. Lorain No. 05CA008666, 2006-Ohio-648, ¶ 6. Father’s first assignment of

error is sustained. {¶25} The September 22, 2016 order is vacated. Judgment vacated.

III. {¶26} Regarding appeal number 28351, Father’s s econd, third, and f ourth assignments of error are overruled. The August 17, 2016 di spositional order is affirmed. As Mother abandoned her appeal, appeal number 28371 is dismissed. Regarding appeal number 28383, Father’s first assignment of error is sustaine d. The September 22, 2016 nunc pro tunc order is

vacated. Appeal No. 28351 affirmed Appeal No. 28371 dismissed. Appeal No. 28383 vacated.

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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 is12

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. Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

SCHAFER, J. CONCURS. HENSAL, P. J. CONCURRING IN JUDGMENT ONLY. {¶27} I concur in judgment only in regard to Appeal No. 28351. Specifically in regard to Father’s fourth assignment of error, I would disregard Father’s argument as irrelevant to the issue of the award of legal custody under th ese circumstances. Where a child has been adjudicated dependent, the juvenile court need only consider the best interest of the child before awarding legal custody to any person. In re K.H. , 9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12. I would not review this matter in terms of either modifying or terminating a prior shared parenting plan, but simply from the perspectiv e of whether an award of legal custody of a dependent child was warranted in the child’s be st interest pursuant to Revised Code Chapter

2151.

APPEARANCES: NEIL P. AGARWAL, Attorney at Law, for Appellant. DAVID LOWRY, Attorney at Law, for Appellant.13

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee. JAMES ARMSTRONG, Guardian ad Litem.