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Date: 03-01-2019

Case Style:

DARR ROBINSON v. BRITTANY BONETA -and- HELLEN DOUGLAS INTERVENING PARTY

Case Number: 1-18-51

Judge: John Willamowski

Court: COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

Plaintiff's Attorney: Not listed

Defendant's Attorney: Micaela C. Deming

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In September of 2012, L.D. was born to defendant-appellee Brittany
Boneta (“Boneta”). Doc. 1. On December 3, 2012, Robinson, along with the Ohio
Department of Job and Family Services through the Allen County Child Support
Enforcement Agency (“ACCSEA”), filed a complaint to determine the parentage of
L.D. Doc. 1. The trial court entered a judgment on October 21, 2013 naming
Robinson as the father of L.D. Doc. 15, 18. No order of parenting time was made
at that time, but Robinson was ordered to pay child support. Id.
{¶3} On February 18, 2014, the ACCSA filed a motion for contempt alleging
that Robinson had failed to comply with the seek work order. Doc. 21. A hearing
was held on the motion on September 25, 2014, at which Robinson admitted being
in contempt of the court order. Doc. 29. The parties agreed that if Robinson
subsequently complied with the court order, they would not oppose a suspended jail

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sentence at the sentencing. Id. The sentencing hearing was held on February 2,
2015. Doc. 32. At that time, Robinson was ordered to serve a 30 day jail sentence.
Id.
{¶4} On March 25, 2016, Robinson filed a complaint for allocation of
parental rights and responsibilities under the same case number as the paternity case.
Doc. 48. Robinson then filed an ex parte motion for temporary custody of L.D. on
April 5, 2016. Doc. 60. The basis for this was that Boneta had left L.D. with
Douglas, the maternal grandmother, while Boneta entered a drug rehabilitation
program. Id. On April 13, 2016, Douglas filed a motion to intervene and to be
granted legal custody of L.D. Doc. 62 and 63. Douglas alleged in the motion for
legal custody that Robinson was prohibited from contact with L.D. by a domestic
violence civil protection order issued by the Auglaize County Court of Common
Pleas. Doc. 63. On June 13, 2016, a copy of a judgment entry modifying that
protection order to allow Robinson contact with L.D. was filed. Doc. 70. This
modification occurred after a hearing on June 3, 2016, and the Court of Common
Pleas of Auglaize Country removed L.D. from the protection order “as a Court of
competent jurisdiction is considering parental rights and responsibilities and will
issue orders accordingly.” Id. On July 8, 2016, the magistrate granted Douglas’
motion to be added as a party. Doc. 71. On July 19, 2016, a hearing was held on
Robinson’s motion for temporary custody of L.D. Doc. 77. After reviewing the
facts of the case, the magistrate denied Robinson’s motion due to him having no

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relationship with the child. Doc. 77. The magistrate granted visitation to Robinson.
Id.
{¶5} On November 30, 2016, all of the parties submitted a joint motion for a
Guardian ad Litem (“GAL”). Doc. 83. The trial court granted the motion and
appointed a GAL. Doc. 86. The GAL filed his report on April 3, 2017. Doc. 110.
On June 2, 2017, Robinson filed a second ex parte motion for temporary custody of
L.D. on the grounds that Boneta had been indicted on four felony drug offenses.
Doc. 142. Douglas filed a response to the motion on June 7, 2017. Doc. 144.
Boneta filed her response to the motion on June 12, 2017. Doc. 146. The trial court
denied the motion on June 12, 2017. Doc. 147.
{¶6} Hearings were held to determine the allocation of parental rights and
responsibilities on August 1, August 22, and September 5, 2017. Doc. 171. On
March 22, 2018, the magistrate filed her decision. Id. In the decision, the magistrate
specifically found that there was no evidence presented at the hearings that any party
had a conviction for domestic violence or had committed an act which might form
the basis for the minor child to be found a dependent, neglected, or abused child.
Id. at 34. The magistrate then named Robinson as the residential parent. Id. at 41.
Douglas filed objections to the decision on April 4, 2018. Doc. 173. As part of the
objections, Douglas requested that the trial court accept additional evidence in the
matter that was unavailable to Douglas at the time of the hearings as is permitted
pursuant to Civil Rule 53(D)(4)(d). Id. Douglas then attached exhibits allegedly

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supporting her claims. Id. On August 2, 2018, the trial court overruled the
objections to the magistrate’s decision and implemented the decision of the
magistrate as an order of the court. Doc. 194. In doing so the trial court denied the
request to hear additional evidence. Id. Douglas appeals from this judgment and
on appeal raises the following assignment of error.
The trial court erred by finding that [Robinson] was a suitable parent and that a grant of custody was in the best interests of the minor child without affording [Douglas] the opportunity to present additional evidence, under Civ.R. 53(D)(4)(d)/Juv.R. 40(D)(4)(d) when the evidence demonstrated continuing detriment to the child while in [Robinson’s] care.

{¶7} The assignment of error challenges whether the trial court should have
held a hearing for the presentation of additional evidence. Originally Douglas
claimed the right to present additional evidence under Civil Rule 53(D)(4)(d).
If one or more objections to a magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.

Civ. R. 53(D)(4)(d). The appropriate rule for this issue in this case would have been
Juvenile Rule 40(D)(4)(d) as the case is occurring in juvenile court. However, the
language of Juvenile Rule 40(D)(4)(d) is identical to that of Civil Rule 53(D)(4)(d).
Thus, the analysis of either statute will produce the same result. Both of these rules

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consider that new events may occur between the time of the hearing and the trial
court’s final judgment and that the purpose of the rule is to provide a way for the
introduction of such evidence before the trial court issues its final judgment. See
Morrison v. Morrison, 9th Dist. Summit No. 27150, 2014-Ohio-2254, ¶ 26
(analyzing Civ.R. 53(D)(4)(d)) and In re A.S., 9th Dist. Summit No. 26462, 2013
Ohio-1975, ¶ 14.
{¶8} Generally, the trial court has discretion to determine whether it will hear
additional evidence following an objection, but “a court does not have discretion to
refuse to consider new evidence if the objecting party demonstrates that it could not,
with reasonable diligence, have presented the evidence to the magistrate.” Welch v.
Welch, 4th Dist. Athens No. 12CA12, 2012-Ohio-6297, ¶ 12. While this court is
“sympathetic to a burdensome caseload and the struggle to produce timely
decisions,” the passage of time between the hearing and the decision of the trial
court can allow for changes in circumstances that may be properly raised by a party
pursuant to the appropriate rule, i.e. either Civil Rule 53(D)(4)(d) or Juvenile Rule
40(D)(4)(d). See Noe v. Noe, 5th Dist. Ashland No. 07-COA-047, 2008-Ohio-1700,
¶ 20-21. Courts have routinely held that when the objecting party demonstrates that
with reasonable diligence, it could not have produced the additional evidence for
the magistrate’s consideration, the trial court must hold a hearing on the additional
evidence. See Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-Ohio
3008, ¶ 42; Maddox v. Maddox, 1st Dist. Hamilton No. C-140718, 2016-Ohio-2908,

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65 N.E.3d 88, ¶ 14; In re M.L.E, C.I.E., J.T.E., A.C.E., N.C.E., H.J.E., L.M.E.,
J.R.E., 11th Dist. Portage Nos. 2015-P-0007, 2015-P-0010, 2015-P-0011, 2015-P
0012, 2015-P-0013, 2015-P-0014, 2015-P-0015, 2015-P-0016, 2015-Ohio-3647, ¶
47; Morrison, supra; In re A.S., supra; Welch, supra; Riley v. Riley, 6th Dist. Huron
No. H-08-019, 2009-Ohio-2764, ¶ 20; and Johnson-Wooldridge v. Wooldridge, 10th
Dist. Franklin No. 00AP-1073, 2001 WL 838986.
{¶9} In this case, Douglas is pointing to events that occurred after the final
hearing date as additional evidence. This court makes no finding on the weight of
the evidence as far as whether it would be sufficient to justify a new hearing.
However, the trial court specifically found that “[a]ll of the unavailable evidence to
which [Douglas] refers relates to occurrences subsequent to the completion of the
hearing. It was evidence which the Magistrate could not have heard and considered
at the time of the trial because it did not exist at the time of trial”. Doc. 194. Juvenile
Rule 40(D)(4)(d) and the applicable case law provides that if the trial court
determines that there was new evidence which could not have been heard and
considered at the time of the trial for consideration by the magistrate, the trial court
must hold a hearing on the additional evidence. The trial court in this case made
such a finding. Thus, the trial court erred by denying the request for a hearing on
the additional evidence even though it had determined that Douglas had
demonstrated that she could not, with reasonable diligence, have produced that

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evidence for the consideration of the magistrate. For this reason, the assignment of
error is sustained.

Outcome: Having found error prejudicial to the appellant, the judgment of the
Court of Common Pleas of Allen County, Juvenile Division is reversed and the
matter is remanded for further proceedings.

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