[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 custody to Mother. He also appeals the juvenile 

court’s subsequent nunc pro tunc order addressing visitation. Mother too filed a notice of appeal 

from the trial court’s dispositional order. The three appeals have been consolidated for purposes 

of briefing, argument, and disposition. This Court affirms the dispositional order, vacates the 

nunc pro tunc order, and dismisses Mother’s appeal.

I. 

{¶2} Mother and Father enjoyed parental rights 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 County Children Services Board (“CSB”) filed a 

complaint alleging the child to be dependent based, in part, on an act of intimate partner violence 
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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 adjudication 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 003001 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 parenting 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; ordered 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 parenting time schedule and child support worksheet were 

attached to the decision. The trial court adopted the orders the same day. 

{¶4} Father filed timely objections to the magistrate’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 occurred, and (2) the best interest of the child, 

 

1

 The child was previously adjudicated dependent by the Stark County Juvenile Court. 
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pursuant to R.C. 3109.04(E)(1)(a). He also challenged 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 requires consideration merely 

of whether shared parenting is in the best interest of the child without consideration of whether a 

change in circumstances had occurred. 

{¶6} The juvenile court acknowledged 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 juvenile 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, neglected, 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 court then looked to the best interest factors set 

forth in R.C. 2151.414(D) (relevant to a determination 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 court overruled Father’s objections and placed the 

child in the legal custody of Mother. In addition, the court ordered specific weekly visitation for 

Father; that the parties would adhere to the Stark County Parenting 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. 
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{¶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 month, but that Mother would retain the child during 

the last weekend. When the juvenile court overruled Father’s objections and independently 

entered judgment, however, it ordered simply that Father would have visitation with the child 

every weekend. Father opposed Mother’s motion for an order clarifying that she was entitled to 

keep the child the last weekend of every month. On September 22, 2016, the juvenile court 

issued a nunc pro tunc order amending the visitation 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 address 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 “order 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. 
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{¶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 syllabus. 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 requests reversal and remand to the juvenile 

court for incorporation of the child support worksheet into the final judgment, the trial court’s 

adherence to its prior order does just that. Father’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 adopted 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 adoption of the magistrate’s decision 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 Father’s objections, the juvenile court enunciated 

a visitation order, including that the parties would abide by the Stark Family Court Parenting 

Time Schedule. The trial court further ordered that “[a]ll prior orders not in direct conflict with 
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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 parenting 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 juvenile 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 application of a statute is an issue of law, 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 trial court’s decision without any deference to the 
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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 juvenile court could award legal custody to Mother, it had to apply 

the factors in R.C. 3109.04(E)(1)(a) and determine 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 court rejected Father’s argument, and 

concluded that R.C. 2151.353, which sets out the dispositional options for a child who has been 

adjudicated dependent, neglected, or abused, was applicable. R.C. 2151.353(A)(3) authorizes 

the juvenile court to award legal custody 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 adjudicated 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 subsequent 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 procedural 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 analysis 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. Second, 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. 
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In re Poling stands for the initial proposition that, although 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, concluding 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 appellate 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. 
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3109.04(E)(1)(a), it did so on the basis that the juvenile 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 from 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 requires the application of R.C. 3109.04 in this case, the 

applicable provision under these 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 court 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 considering 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 parenting plan. Assuming for the sake of argument 

that that provision applied to this matter, the juvenile court’s application 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 the 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. 
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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, however, 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 judgment 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 Court, 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 mechanism 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 assignment 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 Court does not address that issue. 
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appeal was docketed. No party or the juvenile court 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 order, 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 second, third, and fourth assignments 

of error are overruled. The August 17, 2016 dispositional order is affirmed. As Mother 

abandoned her appeal, appeal number 28371 is dismissed. Regarding appeal number 28383, 

Father’s first assignment of error is sustained. 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 mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document 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 is 
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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 these 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 perspective of whether an award of legal custody of a 

dependent child was warranted in the child’s best interest pursuant to Revised Code Chapter 

2151. 

APPEARANCES: 

NEIL P. AGARWAL, Attorney at Law, for Appellant. 

DAVID LOWRY, Attorney at Law, for Appellant. 
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SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee. 

JAMES ARMSTRONG, Guardian ad Litem.