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Schwartz v. Osiatynski12/18/1997
Andzej Osiatynski appeals and Carol Ann Schwartz cross-appeals from a decree of divorce entered by the Domestic Relations Division of the Common Pleas Court, and each party raises multiple assignments of error, alleging trial court errors and abuse of discretion in connection with orders in the decree concerning relocation to Florida, child support, visitation, property division, fees, valuation of assets, tax questions and arrearages. After conducting a thorough review of the record, we find no error or abuse of discretion, and, therefore, we affirm the judgment of the trial court for the reasons contained in this opinion.
The record reveals that the parties married on October 17, 1982, and raised two minor children, Solomon now age 13, and Luba Shoshana, now age 11. Schwartz filed for the divorce , the court referred the matter to a magistrate for hearing, the parties objected to the magistrate's decision but, on December 31, 1996, the court adopted that decision. Osiatynski then appealed and raised nine assignments of error, while Schwartz cross-appealed and raised four cross-assignments of error, all of which we now review.
Osiatynski's first assignment of error states:
I.
THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN INDEPENDENT AND DE NOVO REVIEW OF THE MAGISTRATE'S DECISIONS UPON APPELLANT'S OBJECTIONS.
Osiatynski alleges the trial court utilized only two business days to consider objections to the magistrate's decision and the evidence, and thereby failed to conduct a proper de novo review of the proceedings and, consequently, erred when it adopted the magistrate's decision.
Schwartz contends the court complied with Civ.R. 53(E)(4)(b) and, hence, did not err when it adopted the magistrate's decision.
The issue then for our review is whether the trial court erred when it adopted the magistrate's decision.
We begin by examining Civ.R. 53(E)(4)(b) which states in relevant part:
Upon consideration of any objections, the court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter * * *.
Furthermore, we note that the rule no longer requires the trial judge to conduct an independent review prior to making a determination mandated by Civ.R 53. See Staff Note: 7-1-95 Amendment, Rule 53(E).
Here, the appellant speculated that the court failed to conduct a de novo review in the matter, because the court entered its judgment only four days after Osiatynski filed his final objections. The record reflects however, that Osiatynski submitted objections on September 3, December 9, and again December 27, 1996, and also, that the court adopted the magistrate's decision on December 31, 1996. Thus, while the record shows the court entered its judgment only four days after Osiatynski filed his December 27, 1996 objections, in reality, the court had four months to consider the September 3 objections and almost three weeks to review and determine the merit of his December 9 objections. Under these facts, we cannot conclude the court did not independently review these objections and, accordingly, this assignment of error is overruled.
Because Osiatynski's second and sixth assignments of error both challenge the court's allocation of parental rights and responsibilities, we shall consider them together. They state:
II.
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ALLOWING APPELLEE TO RELOCATE WITH THE CHILDREN WHERE RELOCATION WAS NOT SHOWN TO BE IN THE BEST INTEREST OF THE CHILDREN.
VI.
T
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