Singer v. Singer

[Cite as Singer v. Singer, 2019-Ohio-5294.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF MEDINA )

MARELLA SINGER, nka BROWN C.A. No. 18CA0073-M

Appellee

v. APPEAL FROM JUDGMENT

ENTERED IN THE

GARY SINGER COURT OF COMMON PLEAS

COUNTY OF MEDINA, OHIO

Appellant CASE No. 17DR0048

DECISION AND JOURNAL ENTRY

Dated: December 23, 2019

CALLAHAN, Judge.

{¶1} Appellant, Gary Singer, appeals from the judgment of the Medina County

Common Pleas Court, Domestic Relations Division. For the reasons set forth below, this Court

affirms.

I.

{¶2} Gary Singer and Marella Singer, nka Brown,1 were married in 2004 and have two

children. Mr. Singer resides in Tennessee and Mrs. Brown and the children reside in Ohio.

{¶3} In 2010, Mr. Singer initiated divorce proceedings in Tennessee. During the next

six years, the parties engaged in protracted litigation, including the filing and dismissal of

various divorce and separation complaints and counterclaims in both Ohio and Tennessee.

{¶4} On January 13, 2017, a Final Decree of Divorce was filed in Tennessee whereby

Mrs. Brown was granted a divorce and Mr. Singer and Mrs. Brown entered into a settlement

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Marella Singer remarried during the pendency of this case.

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regarding the division of assets and liabilities and spousal support. The allocation of parental

rights and responsibilities was specifically excluded from the Final Decree of Divorce and

reserved for decision by the Medina County Domestic Relations Court.

{¶5} Approximately one month before the Final Decree of Divorce was filed in

Tennessee, Mr. Singer filed a second complaint for legal separation in Medina County, which

included a request for custody of the children. Two weeks after the filing of the Final Decree of

Divorce in Tennessee, Mrs. Brown filed a motion to allocate parental rights and responsibilities

in Medina County. These two cases were consolidated. During the pendency of the case, Mrs.

Brown was designated the temporary residential parent and legal custodian of the children and

the parties were ordered to follow the court’s standard long-distance parenting time schedule for

the summer of 2017. A pre-trial conference was held during which the matter was scheduled for

final pretrial and trial,2 and discovery deadlines were set.

{¶6} A final pretrial was held three weeks prior to the trial. At that time, Mr. Singer

filed a motion for forensic psychological evaluations of both parties and the children. One week

before the trial, Mrs. Brown filed a motion for an in camera interview of the children to discern

their wishes regarding visitation schedules.

{¶7} The trial commenced on August 9, 2017 with both parties and their counsel

present. However, the trial was not able to be completed that day and was ordered to reconvene

the next morning. Mr. Singer’s counsel objected and filed a motion to continue on the morning

of August 10, 2017, because he was scheduled to be in a trial in another court on that day and

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The parties, the magistrate, and the trial court use the terms “trial” and “final hearing”

interchangeably throughout the record. We will utilize the term “trial.”

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time. While the motion to continue was denied, the trial did not proceed because Mr. Singer

immediately appealed the denial of his request for continuance. Two months later the appeal

was dismissed because this Court concluded that it lacked jurisdiction as there was no order

entered on the docket and the appeal was moot because the trial date had expired. Singer v.

Singer, 9th Dist. Medina No. 17CA0059-M (Oct. 6, 2017).

{¶8} Upon remand, a Notice of Hearing was issued on October 20, 2017 stating the

trial would resume on December 27, 2017 and proceed day to day until complete. On December

12, 2017, Mr. Singer filed a motion to continue the trial for two reasons: he was required to be

in Tennessee to sign closing documents for his new home and his counsel was scheduled to

attend continuing legal education courses. The motion to continue was denied the next day. Mr.

Singer filed a motion to set aside the magistrate’s order, to which there was no ruling. On

December 27, 2017, Mr. Singer’s counsel appeared for trial, but Mr. Singer did not.

{¶9} Three weeks after the conclusion of the trial, the magistrate conducted an in

camera interview of the children. On March 15, 2018, the magistrate issued a decision

designating Mrs. Brown as the sole residential parent and legal custodian of the children,

granting Mr. Singer parenting time, and calculating Mr. Singer’s child support obligation. The

trial judge adopted the magistrate’s decision the same day.

{¶10} Mr. Singer filed a request for findings of fact and conclusions of law which was

denied because the magistrate’s decision contained findings of fact and conclusions of law. Mr.

Singer then timely filed preliminary objections to the magistrate’s decision. Thereafter, Mr.

Singer filed three separate motions for additional time to file supplemental objections. Without

leave of court, Mr. Singer filed supplemental objections on May 8, 2018 and partial hearing

transcripts on June 14, 2018. The trial court declined to consider Mr. Singer’s supplemental

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objections and partial transcripts, overruled all of Mr. Singer’s preliminary objections, and

adopted the magistrate’s decision in its entirety. Mr. Singer timely appeals, raising three

assignments of error.

II.

STANDARD OF REVIEW

{¶11} This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-

5232, ¶ 9. “In so doing, we consider the trial court’s action with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-

3139, ¶ 18. An abuse of discretion is present when a trial court’s decision “‘is contrary to law,

unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist.

Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-

24, 2015-Ohio-1999, ¶ 25.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED BY AFFIRMING GARY SINGER’S TIMELY

OBJECTION TO THE MAGISTRATE’[S] UNJUSTIFIED, ARBITRARY[,]

AND UNREASONABLE DENIAL OF HIS MOTION TO CONTINUE THE

SECOND DAY OF TRIAL.

{¶12} In his first assignment of error, Mr. Singer argues that the trial court abused its

discretion when it denied his motion to continue the December 27, 2017 trial date3 and thereby

denied him due process of law. This Court disagrees.

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Despite Mr. Singer’s lengthy discussion regarding the denial of the continuance of the

August 10, 2017 trial date, Mr. Singer’s preliminary objection to the magistrate only addressed

the denial of the continuance of the December 27, 2017 trial date. Accordingly, we will only

address the denial of the motion to continue the December 27, 2017 trial date.

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{¶13} As a preliminary matter, we will clarify which objections are before this Court for

appellate review. Mr. Singer timely filed preliminary objections. The trial court denied Mr.

Singer’s motion for enlargement of time to file supplemental objections and declined to consider

the supplemental objections. Further, the trial court declined to consider Mr. Singer’s evidence-

based objections because the transcripts of the proceedings were filed untimely and were not

complete transcripts of the trial. Mr. Singer has not asserted on appeal that the trial court abused

its discretion regarding either of those decisions. Because the trial court declined to consider the

supplemental objections and the partial transcripts and limited its consideration to Mr. Singer’s

preliminary objections, our review is similarly confined to Mr. Singer’s preliminary objections.

{¶14} Notably, the arguments contained in Mr. Singer’s appellate brief are premised

upon the arguments set forth in his supplemental objections. As the supplemental objections are

not properly before this Court, neither is the substance of Mr. Singer’s appellate arguments.

Nonetheless, we will review whether the trial court’s actions with respect to the magistrate’s

decision were an abuse of discretion. See Fields, 2008-Ohio-5232, at ¶ 9.

{¶15} The grant or denial of a motion for continuance is reviewed for an abuse of

discretion. State v. Unger, 67 Ohio St.2d 65, 67 (1981). Accord Swedlow v. Reigler, 9th Dist.

Summit No. 26710, 2013-Ohio-5562, ¶ 9. See Sup.R. 41(A) (“The continuance of a scheduled

trial or hearing is a matter within the sound discretion of the trial court for good cause shown.”).

Due process considerations arising from a motion for continuance are also subject to a

discretionary standard of review. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

{¶16} “‘There are no mechanical tests for deciding when a denial of a continuance is so

arbitrary as to violate due process. The answer must be found in the circumstances present in

every case, particularly in the reasons presented to the trial judge at the time the request is

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denied.’” Unger at 67, quoting Ungar at 589. Thus, “not every denial of a continuance

constitutes a denial of due process.” State v. Broom, 40 Ohio St.3d 277, 288 (1988), citing

Ungar at 589.

{¶17} When reviewing whether there was an abuse of discretion by the trial court in

denying a motion for continuance, this Court applies a balancing test which weighs the possible

prejudice to the moving party against the trial court’s interest in controlling the docket and

dispensing efficient justice. Unger at 67. Accord Swedlow at ¶ 9. Factors that the trial court

should consider include

“the length of the delay requested; whether other continuances have been

requested and received; the inconvenience to litigants, witnesses, opposing

counsel and the court; whether the requested delay is for legitimate reasons or

whether it is dilatory, purposeful, or contrived; whether the defendant contributed

to the circumstance which gives rise to the request for a continuance; and other

relevant factors, depending on the unique facts of each case.”

Swedlow at ¶ 9, quoting Unger at 67-68. This Court examines the same factors in its review of

the trial court’s decision relative to the motion for continuance. Schiesswohl v Schiesswohl, 9th

Dist. Summit No. 21629, 2004-Ohio-1615, ¶ 20.

{¶18} In reaching its conclusion to adopt the magistrate’s denial of the continuance of

the December 27, 2017 trial date, the trial court applied the balancing test by examining the

docket filings preceding the denial of the motion to continue. Specifically, the trial court

considered the following: the trial had begun five months earlier; one continuance had already

been requested and denied, but indirectly obtained by the filing of a notice of appeal; the case

had been delayed two months due to the appeal of an issue which the appellate court had no

jurisdiction to review; the timing of the motion to continue in relation to the trial date and the

notice of the trial date; the reasons stated for the continuance were Mr. Singer’s conflict in the

date with the closing of his new home and Mr. Singer’s counsel’s need to complete his

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continuing legal education requirements; and the motion to set aside did not stay the

effectiveness of the Magistrate’s Order denying the motion for continuance. See Unger at 67-

68.

{¶19} Balancing the trial court’s interest in controlling the docket and dispensing

efficient justice against the potential prejudice to Mr. Singer, this Court cannot conclude that the

trial court abused its discretion when it denied the motion to continue the December 27, 2017

trial. See Unger at 67.

{¶20} Relying upon the same docket filings, the trial court concluded that the denial of

the motion to continue did not deny Mr. Singer due process of law by not permitting him to

produce evidence at the trial. Due process requires reasonable notice and an opportunity to be

heard. Ohio Assn. of Pub. School Emps., AFSCME, AFL–CIO v. Lakewood City School Dist. Bd.

of Edn., 68 Ohio St.3d 175, 176 (1994), citing Cleveland Bd. of Edn. v. Loudermill, 470 U.S.

532, 542 (1985). The docket reflects that a Notice of Hearing dated October 20, 2017, was sent

to all parties and counsel scheduling the trial date for December 27, 2017. In light of the two-

month notice of the trial date, Mr. Singer received reasonable notice of the trial date.

{¶21} Further, the December 27, 2017 trial date provided Mr. Singer with the

opportunity to be heard by allowing him to present evidence at the trial. Despite having notice of

the trial date, Mr. Singer failed to appear on December 27, 2017 to testify. However, Mr. Singer

was represented by counsel, who did appear on December 27, 2017 and who could have

proceeded to call or cross-exam the other witnesses contained in Mr. Singer’s witness list.

{¶22} Based upon the foregoing, we conclude that the trial court did not abuse its

discretion when it denied Mr. Singer’s motion to continue, nor did the denial of the continuance

constitute a denial of due process.

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{¶23} Mr. Singer’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

AFFIRMING THE MAGISTRATE’S SUB SILENTIO DENIAL OF GARY

SINGER’S TIMELY MOTION FOR AN INDEPENDENT PSYCHOLOGICAL

EVALUATION.

{¶24} Mr. Singer contends that the trial court abused its discretion by denying his

motion for independent psychological evaluations of the parties and the children. We disagree.

{¶25} R.C. 3109.04(C) and Civ.R. 35(A) both permit psychological examinations of the

parties and the minor children. Pursuant to R.C. 3109.04(C), the trial court may order medical,

psychological, and psychiatric examinations of the parents and the minor children to assist in

ascertaining the fitness of the parents in determining the best interests of the children in the

allocation of parental rights and responsibilities. Id.; Citta-Pietrolungo v. Pietrolungo, 8th Dist.

Cuyahoga Nos. 81943, 82069, 2003-Ohio-3357, ¶ 19. Such examinations are to occur prior to

trial and the report of the examination must be available, upon written request, to the parents and

their counsel at least five days before trial. R.C. 3109.04(C).

{¶26} Similarly, Civ.R. 35(A) permits the trial court to order a mental or physical

examination of a party or a person in the custody of a party when the mental or physical

condition of that individual is in controversy. Id. The trial court may order such an examination

upon the filing of a motion showing good cause. Id.

{¶27} As to the trial court’s authority to order a physical or mental examination, R.C.

3109.04(C) and Civ.R. 35(A) are both permissive, not mandatory. Sites v. Sites, 4th Dist.

Lawrence No. 09CA19, 2010-Ohio-2748, ¶ 25. Thus, it is within the trial court’s discretion

whether to order an examination, and absent an abuse of discretion we will not reverse that

decision. Sites at ¶ 25, citing Sinsky v. Matthews, 9th Dist. Summit No. 20248, 2001 WL

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888378, *4 (Aug. 8, 2001). See Yazdani-Isfehani v. Yazdani-Isfehani, 170 Ohio App.3d 1, 2006-

Ohio-7105, ¶ 37 (4th Dist.).

{¶28} Similar to the first assignment of error, we will not consider Mr. Singer’s

arguments on appeal that were presented in his supplemental objections. Instead, we will

confine our review to whether the trial court abused its discretion in denying Mr. Singer’s motion

for forensic psychological evaluations of the children and parents. Relying upon the docket

filings, the trial court adopted the magistrate’s denial of the motion for psychological evaluations

on the basis that it was untimely.

{¶29} The trial court noted and the docket confirms that the case had been pending for

six months and that Mr. Singer waited until the final pretrial to file the motion for psychological

evaluations. Mr. Singer’s filing of the motion for psychological evaluations at that stage of the

proceedings was in contravention of Local Rule 5.04 of the Court of Common Pleas of Medina

County, Domestic Relations Division, which requires a motion for psychological evaluation to

either be filed or orally made at the case management conference. The case management

conference was held on March 28, 2017. The pretrial order from that conference contains no

reference to any oral or written motion for psychological evaluations. Instead, the docket reflects

Mr. Singer delayed an additional three months, until the morning of the final pretrial on July 13,

2017, to seek permission to have four psychological examinations conducted prior to the August

9, 2017 trial.

{¶30} Based upon the record, there is nothing to suggest that the trial court’s denial of

Mr. Singer’s motion for psychological evaluations on the basis of untimeliness was an abuse of

discretion.

{¶31} Mr. Singer’s second assignment of error is overruled.

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ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

OVERRULING GARY SINGER’S OBJECTION TO THE MAGISTRATE’S

DECISION TO CONDUCT AN IN[]CAMERA INTERVIEW OF HIS

CHILDREN WITHOUT FIRST APPOINTING A GUARDIAN AD LITEM.

{¶32} Mr. Singer argues that the trial court abused its discretion when it failed to

appoint a guardian ad litem for the children during the in camera interview. This Court does not

agree.

{¶33} When considering the best interest of the child in deciding the allocation of

parental rights and responsibilities, the trial court may, in its discretion, interview the child in

chambers to determine the child’s wishes. R.C. 3109.04(B)(1). If either party requests such an

interview, then the court must question the child. Id.

{¶34} If the court conducts an interview to determine the child’s wishes, then “[t]he

court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad

litem for the child.” R.C. 3109.04(B)(2)(a). Accordingly, when neither parent requests the

appointment of a guardian ad litem for the in camera interview, it is within the trial court’s

discretion whether to appoint a guardian ad litem. Id. See Phillips v. Phillips, 9th Dist. Lorain

No. 13CA010358, 2014-Ohio-248, ¶ 22, quoting Badgett v. Badgett, 120 Ohio App.3d 448, 452

(7th Dist.1997). In this case, neither Mr. Singer nor Mrs. Brown moved the trial court to appoint

a guardian ad litem for the children for the in camera interview. Thus, this Court will review the

trial court’s decision not to appoint a guardian ad litem for the in camera interview for an abuse

of discretion. See Douglass-Makni v. Makni, 4th Dist. Pike No. 01CA680, 2002-Ohio-5098, ¶

19.

{¶35} As with the prior two assignments of error, we will not address Mr. Singer’s

arguments on appeal that were presented in his supplemental objections. Rather, we will limit

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our review to whether the trial court abused its discretion by conducting an in camera interview

of the minor children without a guardian ad litem present.

{¶36} In response to Mr. Singer’s stated preliminary objection, the trial court referenced

the above statutes and noted the absence of a motion from either parent. The trial court went on

to conclude that “[t]here [was] nothing in the record to suggest the Magistrate erred by not sua

sponte appointing a guardian ad litem to represent the best interest of the minor children at the in

camera interview.” (Alterations sic.)

{¶37} Based upon the foregoing, the trial court determined that there was no need for

the children to have representation or protection during the in camera interview. Mr. Singer has

failed to show that the trial court’s decision constituted an abuse of discretion. Upon review of

the record, we cannot say that the trial court abused its discretion to proceed with the in camera

interview without appointing a guardian ad litem for the children.

{¶38} Mr. Singer’s third assignment of error is overruled.

III.

{¶39} Mr. Singer’s assignments of error are overruled. The judgment of the Medina

County Common Pleas Court, Domestic Relations Division is affirmed.

Judgment affirmed.

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 Medina, 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.

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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

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 to Appellant.

LYNNE S. CALLAHAN

FOR THE COURT

TEODOSIO, P. J.

CARR, J.

CONCUR.

APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellant.

STEVE C. BAILEY, Attorney at Law, for Appellee.