Opinion
Appellate Court Case No. 2020CA0019
11-03-2020
IN RE: P.L.H.
Copies to: Dalma Grandjean 1 S. Main Street, Suite 1590 Dayton, Ohio 45402 Attorney for Appellant / Father April Moore 1354 N. Monroe Drive, Suite B Xenia, Ohio 45385 Attorney for Appellee / Maternal Grandmother Hon. Adolfo A. Tornichio Greene County Juvenile Court 2100 Greene Way Boulevard Xenia, Ohio 45385
Trial Court Case No. C0049012 [Civil Appeal from Juvenile Court]
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} This matter is before the court for resolution of our show cause order. We conclude that the appeal must be dismissed and the matter returned to the trial court to enter a final appealable order.
{¶ 2} Father appealed the April 14, 2020 Judgment Entry overruling his objections to a corrected magistrate's decision. Therein, the trial court describes the evidence and arguments, makes legal determinations about the arguments, and concludes: "[b]ased on the foregoing, the Court hereby denies [Father's] Objections and affirms the Magistrate's Corrected Decision filed October 2, 2019." The trial court does not, however, enter judgment resolving the underlying dispute or granting custody of the child at the center of the case to either party.
{¶ 3} This court questioned whether the April 14 Entry was a final appealable order, in that the trial court did not enter its own judgment resolving the matter. See Juv.R. 40(D)(4)(e) ("A court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment or interim order"). We ordered Father to show cause why this appeal should not be dismissed for lack of jurisdiction, and offered Appellee, Maternal Grandmother, an opportunity to respond. Father filed a response; Maternal Grandmother did not.
{¶ 4} Father submits that the April 14 Entry is final and appealable. He argues that the trial court conducted an independent review and "came to a legal conclusion that legal custody of the child at issue should be awarded to Appellee." The April 14 Entry, however, does not contain any judgment language awarding custody to Appellee. In reciting the procedural history, the trial court notes that the Magistrate granted custody of the child to Maternal Grandmother. While it seems clear that the trial court agrees with the Magistrate, to be considered a final order, the trial court must make its own judgment and order awarding custody and resolving the case. See State ex rel. Boddie v. Franklin Cty. 911 Admr., 135 Ohio St.3d 248, 2013-Ohio-401, 985 N.E.2d 1263, ¶ 2, quoting In re Adoption of S.R.A., 189 Ohio App.3d 363, 2010-Ohio-4435, 938 N.E.2d 432, ¶ 17 (10th Dist.) (" 'Orders do not constitute court orders unless certain formalities are met, and only judges, not magistrates, can terminate claims or actions by entering judgment' "); In re Dortch, 135 Ohio App.3d 430, 432, 734 N.E.2d 434 (9th Dist.1999) (finding that an entry discussing a child support arrearage was not final because although the entry "describes the magistrate's orders, [it] fails to set forth the orders of the court").
{¶ 5} This court has consistently held that "[t]he trial court's resolution of a referred matter, upon review of the magistrate's decision, must satisfy several requirements to be considered a final appealable order." Keeney v. Keeney, 2d Dist. Clark No. 19-CA-0037, 2019-Ohio-4098, ¶ 3. "First, the trial court's judgment entry must contain the trial court's own judgment and order on the underlying matter; it is insufficient for the trial court to simply adopt the magistrate's decision as its own order." Id. at ¶ 4, citing Boddie at ¶ 2 and Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218, 736 N.E.2d 101 (9th Dist.2000). This requirement, sometimes referred to as the "own-order" requirement, requires the trial court to do more than adopt the magistrate's decision and rely on that decision as its own. "Even if a judge entirely agrees with the decision of the magistrate, the judge must still separately enter his or her own judgment setting forth the outcome of the dispute and the remedy provided." Figetakis v. My Pillow, Inc., 9th Dist. Summit No. 29136, 2020-Ohio-3949, ¶ 10.
{¶ 6} We explained in Keeney that the court's judgment should be specific enough to be enforced:
"The content of the judgment must be definite enough to be susceptible to further enforcement and provide sufficient information to enable the parties to understand the outcome of the case. It is fundamental that the trial court employ diction which should include * * * operative, action-like and conclusionary verbiage * * *. Moreover, a 'judgment' must be distinguished from a 'decision.' While a decision announces what the judgment shall be, the judgment entry orders the relief unequivocally. (Citations omitted.)"Keeney at ¶ 4, quoting Kendall v. Kendall, 6th Dist. Ottawa No. OT-13-019, 2014-Ohio-4730, ¶ 15. See also Figetakis at ¶ 10 ("a trial court order stating only that it is adopting a magistrate's decision does not disclose how the trial court is resolving the issues submitted to it, and, therefore, is not final") (internal quotations and citations omitted).
{¶ 7} Second, and related to the own-order requirement, "[t]he trial court's entry must sufficiently address the pending issues 'so that the parties may know of their rights and obligations by referring only to that document known as the judgment entry.' " Keeney at ¶ 5, quoting In re Michael, 71 Ohio App.3d 727, 729-730, 595 N.E.2d 397 (11th Dist.1991). "Where 'the trial court's filing improperly requires the parties to refer to and compare two separate documents to understand their rights and obligations,' the order is not final and appealable." Id. at ¶ 5, quoting Brown v. Burnett, 2d Dist. Clark No. 2017-CA-86, 2018-Ohio-2328, ¶ 11.
{¶ 8} Third, the trial court must rule on pending objections if they have been filed. Id. at ¶ 6; Waxman v. Link, 2d Dist. Montgomery No. 28415, 2020-Ohio-47, ¶ 21.
{¶ 9} Ohio courts, including this one, previously recognized a fourth requirement: that the trial court's judgment entry be a separate document from the magistrate's decision. Keeney at ¶ 7. For example, this court dismissed an appeal from a purported final entry that attached and incorporated a magistrate's decision. Portis-Phillips v. Phillips, 2d Dist. Clark No. 15-CA-0110 (Jan. 29, 2016). The separate-document requirement was based on prohibitory language in Civ.R. 54(A) at the time that said: "[a] judgment shall not contain * * * the magistrate's decision in a referred matter." Waxman at ¶ 22.
{¶ 10} The separate-document requirement is no longer recognized, as the language on which it was based has been deleted from the rule. Effective July 1, 2019, Civ.R. 54(A) now says: " 'Judgment' as used in these rules means a written entry ordering or declining to order a form of relief, signed by a judge, and journalized on the docket of the court." The 2019 Staff Note to Civ.R. 54 explains that the phrase prohibiting inclusion of a magistrate's decision was deleted because it
unnecessarily circumscribed the contents of a judgment. The original purpose of this language appears, at least in part, to be to distinguish between decisions (which "announce what the judgment will be") and judgments (which "unequivocally order the relief"). See, e.g., Downard v. Gilliland, 4th Dist. Jackson No. 10CA2, 2011-Ohio-1783, ¶ 11, citing St. Vincent Charity Hosp. v. Mintz, 33 Ohio St.3d 121, 123, 515 N.E.2d 917 (1987). The amendment now specifies that a judgment must order or decline to order a form of relief; what a judgment includes beyond that requirement should be left in the discretion of the issuing court.With this prohibition removed, if the trial court enters its own judgment in the same document or on the same piece of paper as the magistrate's decision, it will not be considered a non-final order for this reason.
We caution that to be considered final, such a combined magistrate's decision and judge's order must actually contain the court's required judgment language. Merely appending the judge's signature onto a magistrate's decision, without judgment language, is inadequate. See In the Matter of A.T., 2d Dist. Greene No. 2020-CA-10, 2020-Ohio-4155, ¶ 13 (rejecting such a combined magistrate's decision and judge's order that did not include any judgment language ahead of the trial court's signature).
{¶ 11} The new language in Civ.R. 54(A) does not obviate the other three requirements that have been recognized by Ohio courts. See Behnken v. Behnken, 2d Dist. Greene No. 2019-CA-39, 2020-Ohio-389, ¶ 13, fn. 2, citing Waxman at ¶ 22-23 ("After the July 2019 amendments to Civ.R. 54(A), separate documents are no longer required for a magistrate's decision and judgment entry. However, the other standards remain in effect"); In the Matter of A.T., 2d Dist. Greene No. 2020-CA-10, 2020-Ohio-4155, ¶ 13 (applying the remaining requirements to find an order not final, where it overruled objections but "did not adopt the magistrate's decision or enter an order resolving the case").
{¶ 12} Even after the amendment to Civ.R. 54(A), for a trial court's order to be considered final under these circumstances, the court must still enter its own judgment resolving a case, rather than simply adopting a magistrate's decision, and the court must resolve the matter in a way that allows the parties to understand their rights and obligations. Juv.R. 40(D)(4)(a), (e); Civ.R. 53(D)(4)(a), (e). A trial court must still rule on pending objections. Juv.R. 40(D)(4)(d); Civ.R. 53(D)(4)(d). These three requirements, which are based on concerns or authority other than former Civ.R. 54(A), remain intact after the rule change.
{¶ 13} For example, the own-order requirement exists both because Civ.R. 53 demands it, and because a trial court's own judgment is necessary to satisfy the primary statutory definition of a final order. When a case is fully resolved, the resultant judgment is often considered to be "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment." R.C. 2505.02(B)(1). When an action contains only a magistrate's decision but lacks the trial court's own judgment resolving it, the action has not yet been determined, because only judges, not magistrates, can resolve an action. In re Adoption of S.R.A., 189 Ohio App.3d 363, 2010-Ohio-4435, 938 N.E.2d 432, ¶ 17 (10th Dist.).
{¶ 14} The Supreme Court of Ohio made this connection explicit in Boddie. 135 Ohio St.3d 248, 2013-Ohio-401, 985 N.E.2d 1263. The Court, reviewing a direct appeal of right from a court of appeals in an original action, determined that a magistrate's decision recommending dismissal of the case was not final because the court of appeals (the "trial court" in that case) had not issued its own judgment resolving the case, but relied instead on the magistrate's decision:
"R.C. 2505.02 defines a final order for purposes of appeal." [State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911,] ¶ 18. The applicable portion of this statute states, "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment." R.C. 2505.02(B)(1). The magistrate's decision recommending dismissal of Boddie's mandamus case is not a final, appealable order, because it does not determine the mandamus action and prevent a judgment. See Civ.R. 53(D)(4)(a) ("A magistrate's decision is not effective unless adopted by the court") and (e) ("A court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment or interim order"); In re Adoption of S.R.A., 189 Ohio App.3d 363, 2010-Ohio-4435, 938 N.E.2d 432, ¶ 17 ("Orders do not constitute court orders unless certain formalities are met, and only judges, not magistrates, can terminate claims or actions by entering judgment"). Nor did the court of appeals' order denying Boddie's motion for reconsideration of the magistrate's decision constitute a final, appealable order. See Brewer v. Hope Timber Pallet & Recycling, 5th Dist. No. 10CA-76, 2011-Ohio-533 (order denying motion for reconsideration of interlocutory order denying motion for summary judgment is not a final, appealable order); Harkai v. Scherba Industries, Inc., 136 Ohio
App.3d 211, 218, 736 N.E.2d 101 (2000) ("Although the judge entirely agrees with the decision of the magistrate, the judge must still separately enter his or her own judgment setting forth the outline of the dispute and the remedy provided"). The court of appeals' order denying the motion for reconsideration did not resolve Boddie's mandamus claim, which, according to the court's website, was dismissed by the court of appeals in accordance with the magistrate's decision on January 7, 2013.Boddie at ¶ 2-3. We conclude that the recent change in Civ.R. 54(A) does not modify the own-order requirement.
Therefore, the order appealed from does not constitute a final, appealable order under R.C. 2505.02(B)(1), because it does not determine Boddie's mandamus action or prevent a judgment. State ex rel. Keith v. McMonagle, 103 Ohio St.3d 430, 2004-Ohio-5580, 816 N.E.2d 597, ¶ 4. We thus lack jurisdiction over this appeal and dismiss it.
{¶ 15} The requirement that a trial court state its own judgment in a way that informs the parties of their rights and obligations reflects a long-standing understanding of a "judgment" that is consistent with the new language of Civ.R. 54(A). It applies in these circumstances as an outgrowth of the own-order requirement. In one oft-cited passage, the connection is explained as follows:
The final sentence of Civ.R. 53(E)(5) cautions the trial court to enter its own judgment on the issues submitted for action and report by the referee. Apparently, this requirement appears to create some confusion. Consequently, an amplified analysis is provided.
Under Civ.R. 53, a referee receives evidence and issues a report containing his findings of fact and conclusions of law. What the referee does is not a judicial act. Walker v. Walker (Aug. 5, 1987), Summit App. No. 12978, unreported. Rather, the referee's report is simply a tool to be used by the trial court judge "to make an independent analysis of the issues and to apply the appropriate rules of law in reaching a judgment order." Civ.R. 53(E)(5). (Emphasis added.) If a trial court adopts a referee's report without entering its own independent judgment, the court elevates the referee's report to the status of a judgment in direct contravention of the rule. See Nolte v. Nolte (1978), 60 Ohio App.2d 277, and Logue v. Wilson (1975), 45 Ohio App.2d 132.
Therefore, what must be determined is what constitutes a sufficient "judgment" under Civ.R. 53(E)(5). Generally defined, a judgment is a pronouncement by a court of competent jurisdiction which determines matters submitted to it. State ex rel. Curran v. Brookes (1943), 142 Ohio St. 107. The substance of a judgment must be sufficiently definite to be enforceable as well as adequately inform the parties regarding the outcome of the case or controversy.
Adopting the referee's report and entering judgment is necessarily a two-step process. The trial court may indicate that it has considered the report, the objections of the parties, and the arguments of counsel, and thereafter may order that the findings of the referee be adopted by the court. However, this type of recitation alone does not constitute an entry of judgment. The trial court must then enter its own independent judgment disposing of the matters
at issue between the parties, such that the parties need not resort to any other document to ascertain the extent to which their rights and obligations have been determined. In other words, the judgment entry must be worded in such a manner that the parties can readily determine what is necessary to comply with the order of the court.(Emphases in original.) Lavelle v. Cox, 11th Dist. Trumbull No. 90-T-4396, 1991 WL 35642, *2-3 (Mar. 15, 1991) (Ford, J., concurring). Accord Keeney at ¶ 4-5; Bennett v. Bennett, 2012-Ohio-501, 969 N.E.2d 344, ¶ 20 (2d Dist.). To use the language of revised Civ.R. 54(A), the trial court must issue its own "written entry ordering or declining to order a form of relief" when resolving the matter. Adopting and relying on the magistrate's decision, alone, does not amount to a trial court judgment "ordering or declining to order a form of relief."
It is fundamental that the trial court employ diction which should include sufficient operative, action-like and conclusionary verbiage to satisfy the foregoing fundamental elements. Obviously, it is not necessary for such directive to be encyclopedic in character, but it should contain clear language to provide basic notice of rights, duties, and obligations.
In the instant case, the trial court indicated that it had reviewed the referee's report and objections to the report. Thereafter, the trial court approved and adopted the referee's report "as the final orders of the court as they relate to visitation." All that can be determined by this "judgment entry" is that it deals with visitation. It fails to specify the rights and obligations of the parties in even a de minimus manner so that they can readily determine what is required to comply with the order of the court. Accordingly, the trial court did not properly fulfill its judicial responsibilities as required by Civ.R. 53 as it failed to enter "its own judgment" as defined in the foregoing analysis.
Civ.R. 53 now speaks in terms of magistrates' decisions rather than referees' reports, and has been otherwise revised several times in the last 30 years. However, the main touchpoint of this discussion - namely, that a court adopting a magistrate's decision must also enter judgment - remains in the rule. Civ.R. 53(D)(4)(a), (e); see also Juv.R. 40(D)(4)(a), (e).
{¶ 16} Similarly, the requirement that a trial court resolve objections represents an straightforward application of the principle that a " 'judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order.' " Keith at ¶ 4, quoting Bell v. Horton, 142 Ohio App.3d 694, 696, 756 N.E.2d 1241 (4th Dist.2001). Juv.R. 40(D)(4)(d) and Civ.R. 53(D)(4)(d) both contemplate and require that objections be resolved, and therefore an order that has not yet resolved objections is not yet final.
{¶ 17} These three requirements are expressions of the same statutory and finality principles discussed above, and are markers of a final appealable order where a trial court has referred a matter to a magistrate and is reviewing the magistrate's decision and objections to it.
{¶ 18} In this case, the April 14 Entry on appeal "affirms" (or presumably, adopts) the magistrate's decision. It also resolves the pending objections. However, the Entry does not contain the trial court's own order resolving the matter and ordering relief in terms that the parties (and this court) can review, understand, and enforce. As only the magistrate has entered a decision toward resolution of the custody matter, and the trial court has not, the Entry fails to include the trial court's own judgment ordering relief and resolving the matter. See Brown v. Burnett, 2d Dist. Clark No. 2017-CA-86, 2018-Ohio-2328, ¶ 10 (holding that an appealed order was insufficient under this prong where it "lacks the sort of language found in the January 24, 2017 magistrate's decision that tentatively disposed of the case" by stating "it is ordered and adjudged that the Plaintiff take nothing, that the action be dismissed on the merits and that all court costs be paid by the Plaintiff."). In other words, the April 14 Entry is not a final order because the trial court has not awarded custody of the child at issue and formally resolved the pending custody dispute between the parties.
{¶ 19} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). Accordingly, we find the show cause order NOT SATISFIED. This matter, Greene Appellate Case No. 2020CA0019, is DISMISSED.
{¶ 20} We recognize that dismissal in this circumstance may appear inconsistent with judicial economy. We also recognize that Father sought to timely preserve his rights to appeal what appeared to be a final appealable order. But because this is a question of jurisdiction, the absence of which could later undermine decisions made in this appeal, we must dismiss this appeal to allow for the issuance of a final appealable order in the underlying case.
{¶ 21} Father may file a new notice of appeal and ask that the record be transferred into the new appeal once the trial court enters a final order in the underlying case.
{¶ 22} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Greene County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Appellate costs waived.
SO ORDERED.
/s/_________
MICHAEL L. TUCKER, Presiding Judge
/s/_________
JEFFREY E. FROELICH, Judge
/s/_________
JEFFREY M. WELBAUM, Judge Copies to: Dalma Grandjean
1 S. Main Street, Suite 1590
Dayton, Ohio 45402
Attorney for Appellant / Father April Moore
1354 N. Monroe Drive, Suite B
Xenia, Ohio 45385
Attorney for Appellee / Maternal Grandmother Hon. Adolfo A. Tornichio
Greene County Juvenile Court
2100 Greene Way Boulevard
Xenia, Ohio 45385 CA3/KY