O. !GI NAL

IN THE SUPREME COURT OF OHIO

JENNIFER ERIN BOWKEROn appeal from the

11-1749Petitioner/Appellant Delaware County Court

and

BETTY WOOD

Intervening Grandmother/Appellant

V.

JASON BOWKER

Petitioner/Appellee

of Appeals, Fifth AppellateDistrict

Court of Appeals Case No.IOCAF 11 0085

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS JENNIFER ERIN BOWKER

AND INTERVENING GRANDMOTHER BETTY WOOD

Raymond L. EichenbergerCounsel of Record7620 Slate Ridge Blvd.Reynoldsburg, Ohio 43068(614) 866-9327Sup. Ct. # 0022464Ikelaw@aol.com

COUNSEL FOR APPELLANTSJENNNIFER ERIN BOWKERAND BETTY WOOD

E. Marianne GabelCounsel of Record103 N. Union St.Delaware, Ohio 43015Sup. Ct. # 0012718GUARDIAN AD LITEM

Jeffrey A. BurkamCounsel of Record43 E. Central Ave.Delaware, Ohio 43015Sup. Ct. # 0002712

COUNSEL FOR APPELLEEJASON BOWKER

TABLE OF CONTENTS

Page(s)

EXPLANATION OF WHY CASE IS OF PUBLIC ORGREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENTS IN SUPPORT OF PROPOSITION OF LAW . . . . . . . . . . . 6

Proposition of Law Number 1:

A MAGISTRATE HAS THE ABSOLUTE DUTY TO SUBMIT ASEPARATE FINDINGS OF FACT AND CONCLUSIONS OF LAWWHEN A REQUEST FOR THE SAME HAS BEEN MADE PURSUANTTO CIVIL RULE 53, AND CANNOT MERELY REFER THE PARTIESTO THE COURT'S DECISION AND ADOPT IT AS THE SEPARATEFINDINGS OF FACT AND CONCLUSIONS OF LAW . . . . . . . . . . . . . . . 6

PROPOSITION OF LAW NO. 2

A TRIAL COURT MUST REFER AN APPELLATE RULE 9(C)AFFIDAVIT IN LIEU OF TRANSCRIPT TO THE MAGISTRATEWHO PRESIDED AT A DOMESTIC RELATIONS CUSTODYHEARING, AND CANNOT STRIKE OR AMEND CONTENTFROM THE AFFIDAVIT WITHOUT ANY KNOWLEDGECONCERNING THE TESTIMONY AND EVIDENCE AT THEHEARING; ANY CONTENT STRICKEN FROM THE APPELLATERULE 9(C) AFFIDAVIT MUST BE REPLACED BY THEMAGISTRATE OR THE PARTIES MUST BE GIVEN THEOPPORTUNITY TO RESUBMIT THE AFFIDAVIT; ANINTERVENING GRANDMOTHER TO A POST-DECREECUSTODY CASE IS A NOMINAL PARTY AND MAY ALSOUSE AN APPELLATE RULE 9(C) STATEMENT OF EVIDENCEDUE TO HER ADULT CHILD'S INDIGENCY . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION .......... ..................................... 14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Page(s)

APPENDIX

Opinion of the Fifth District Court of Appeals . . . . . . . . . . . . . . . . . . . . . App. 1(September 2, 2011)

Judgment Entry of the Fifth District Court ofAppeals (September 2, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : App. 17

ii

STATEMENT OF GREAT GENERAL INTEREST

The case at bar is a post-decree child custody case which presents two (2)

distinct and diverse issues to this Court, which are of great interest to the public

as well as the bench and the bar of this state.

First, the case presents the issue of whether a trial court Magistrate can

simply make a one (1) sentence reference to the original Decision of the

Magistrate in an attempt to comply with a Civil Rule 53 Request for Separate

Findings of Fact and Conclusions of Law.

Case law from this Court has previously stated that a new Request for

Separate findings of Fact and Conclusions of Law must be created by the

trial Court, and that a trial Court cannot rest on its Decision as Separate Findings

of Fact and Conclusions of Law. Evidently, Courts of Appeal in Ohio are still failing to

follow the mandate of the decisions of this Court in regard to Civil Rule 53.

More importantly, this case creates a novel fact situation and ruling by

a trial Court in regard to the use of Appellate Rule 9 (C) Statements of Evidence.

In the case at bar, the Court of Appeals remanded the approval of the Appellate

Rule 9 (C) Statement of Evidence to the trial Court judge who had no knowledge

of the case and who had not presided over the hearing in the case.

The three (3) day plus hearing in the post-decree child custody matter had been

heard exclusively by the Magistrate assigned to the case by the trial Court.

^. lnsteaci,he proposecl StaternentafEvidence sihoulu'clearly-ha ve b Vv°°. rulPod

upon by the Magistrate who heard the case and who served as the trier of fact.

This case is stark evidence that the use of Appellate Rule 9 (C) Statements of

Evidence on Appeal is greatly misunderstood in Ohio and that trial courts and

Courts of Appeal are not following the spirit of State ex rel. Motley v. Capers, 23 Ohio

St.3d 56, 491 N.E.2d 311 (1986) as it was originally intended- to provide a help,

and not a hindrance in prosecuting appeals to those parties who cannot afford to pay

for very expensive civil or criminal trial transcripts.

2

STATEMENT OF THE CASE AND THE FACTS

The case at bar is a post-decree Motion filed by Petitioner Jason Bowker

in March of 2009 for modification of parental rights and responsibilities

concerning the two (2) minor children of he and Petitioner Jennifer Erin Bowker:

Jason (date of birth Apri123, 2002) and Madeline (date of birth May 28, 2003).

The party Petitioners ended their marriage by dissolution in 2004, with

residential parental rights and responsibilities being placed with Petitioner

Jennifer Erin Bowker (hereinafter called Erin Bowker).

Maternal grandmother Betty Wood filed a Motion at the start of the post-

decree Motion case to Intervene in order to assert her grandparent visitation rights

pursuant to the Ohio Revised Code.

The parties had a contested hearing before Magistrate Weithman of the

Delaware County Common Pleas Court, Division of Domestic Relations in

July of 2009, September of 2009, January of 2010, and February of 2010.

The hearing testimony of Jason Bowker consisted of 1) allegations of drug

usage by Petitioner Erin Bowker, and 2) the request of Erin Bowker to have

Mr. Bowker care for the children between the end of December, 2008

and the beginning of March, 2009.

Petitioner Erin Bowker presented evidence that 1) she had a drug problem,

and-Fa-ce^lc a-charge ofatteinptm`g to sfea'1 arugs irom-the hospitai where-sbie

was employed; and 2) she entered into an intervention program in lieu of

conviction in which she was being subjected to monthly unannounced drug3

testing since well before the filing of the post-decree Motion.

Petitioner Erin Bowker also presented testimony from herself as to her parenting

skills as a mother, as to the fact that she had always been the parent who took care

of the children and that Petitioner Jason Bowker had always been an uninterested

parent.

Petitioner Erin Bowker presented further testimony 1) from Intervening grandmother

Betty Wood as to the adjustment and condition of the children, 2) from a school teacher

of young Jason Bowker as to his performance in school and as to Jason's diagnosis of

being ADHD, 3) from a counselor who was working with both children as to the family

upheaval and changes brought about by the pending post-decree Motion, and 4) from

a private tutor who had been hired by Petitioner Erin Bowker and Intervening

grandmother Betty Wood to assist young Jason Bowker with his learning difficulties.

During the pendency of the post-decree Motion, Magistrate Weithman issued

a temporary Order changing parental rights and responsibilities to Petitioner Jason

Bowker, based upon an out of rule and surprise Affidavit filed by Petitioner Jason

Bowker. This Affidavit falsely claimed drug usage and a hospitalization over drug usage

by Petitioner Erin Bowker, and was proven false by Petitioner Erin Bowker in her

testimony at the hearing.

On February 12, 2010, the Magistrate in the case entered a Decision in which

he changed primary parental rights and responsibilities of the two (2) minor children

- fo-P-efitiorier Jasoo Bowker.

On February 22, 2010, Petitioner Erin Bowker and Intervening grandmother Betty

Wood filed a Motion for Separate Findings of Fact and Conclusions of i,aw pursuant to4

Civil Rule 53.

On February 25, 2010, the Magistrate responded to the Motion for Separate Findings

of Fact and Conclusions of Law by filing a one (1) sentence Entry in which he adopted

his Decision as his Separate Findings of Fact and Conclusions of Law.

Petitioner Erin Bowker and Intervening grandmother Betty Wood filed an Objection

with the Trial Judge to the Decision of the Magistrate, and used a Civil Rule 53

Affidavit of Evidence due to the fact that Petitioner Erin Bowker could not afford

to pay for a Transcript of the proceedings. The Affidavit of Evidence clearly stated

the fact of the indigency of Petitioner Erin Bowker.

Without holding a hearing, on October 21, 2010 the trial judge ruled upon the

Objections of the parties by sustaining most of the original rulings of the Magistrate,

and by abrogating Intervening grandmother Betty Wood's visitation with the minor

children, which had been ordered to occur by the Magistrate on an alternating weekend

day when Petitioner Jason Bowker was working and not with the children.

Petitioner Erin Bowker and Intervening Crrandmother Betty Wood timely filed

a Notice of Appeal, and the case was orally argued in June of 2011 and decided by the

Fifth District Court of Appeals on September 2, 2011, when the Court of Appeals

sustained the decision of the trial Court.

5

PROPOSITION OF LAW I

A MAGISTRATE HAS THE ABSOLUTE DUTY TO SUBMIT ASEPARATE FINDINGS OF FACT AND CONCLUSIONS OF LAWWHEN A REQUEST FOR THE SAME HAS BEEN MADE PURSUANTTO CIVIL RULE 53, AND CANNOT MERELY REFER THE PARTIESTO THE COURT'S DECISION AND ADOPT IT AS THE SEPARATEFINDINGS OF FACT AND CONCLUSIONS OF LAW.

In the case at bar, a post-decree parental responsibilities Motion, Petitioner Erin

Bowker and intervening grandmother Betty Wood filed a timely request for Civil Rule

53 Findings of Fact and Conclusions of Law with the Magistrate who conducted

the hearing in the case.

In response, the Magistrate filed a one sentence Entry which adopted the

Magistrate's Decision and stated that the Decision would suffice as the Separate

Findings of Fact and Conclusions of Law.

The Entry of the Magistrate was particularly grievous in the matter, as the

Parties did not have the financial resources to pay for the transcription of the

hearing in the case, and planned to rely instead on Appellate Rule 9 (C)

and an Affidavit of Evidence in the case on appeal.

When Petitioner Erin Bowker and intervening Grandmother Betty Wood

briefed their case on appeal, they presented as an Assignment of Error the

failure of the Magistrate to properly follow Civil Rule 53 by filing a Separate

Fin^c ings of Factand Conciusi ns of'Law:

The Fifth Appellate District in ruling on the appeal of the parties upheld

the Magistrate's adoption of his Entry as sufficient to satisfy the requirements for6

a Separate Findings of Fact and Conclusion of Law in the case.

This Court has ruled several times that the obligations of Civil Rule 52 and Civil Rule

53 by a trial Court and Magistrate are mandatory when a Motion for Separate Findings of

Fact and Conclusions of Law is filed by a party.

Evidently both trial Courts in Ohio and Courts of Appeal do not yet

adhere to those decisions from this Court concerning the importance of

Separate Findings of Fact and Conclusions of Law.

In In re Adoption of Gibson, 23 Ohio St.3d 170, 492 N.E.2d 146 (1986)

this Court held that the filing of Separate Findings of Fact and Conclusions of Law

is mandatory once a Motion for the same has been made by any party.

The entire reason and purpose for that section of Civil Rule 53 is so that parties

learn from the trial Court the specific factual reasons for a judgment and

decision, in order that the legal validity of the reasoning may be known so as to

assist the parties to determine grounds for appeal. In re Adoption of Gibson, 23 Ohio

St.3d 170, 492 N.E.2d 146 (1986).

This Court held further in In re Adoption of Gibson, 23 Ohio St.3d 170, 492 N.E.2d

146 (1986) that the failure of a trial Court to render Separate Findings of Fact

and Conclusions of Law unfairly hindered the Appellant in that case from prosecuting

an effective appeal.

In a concurring opinion in that case (dissenting on other grounds), Justice Douglas

emphasized^ha^ Givii Ruie 52/53: i jxizisihe-appellate^,xr byprovidin,;betterunder--

standing of the basis of the trial court's decision, 2) clarifies exactly what was decided

by the trial Court, and 3) evokes care on the part of the trial Court by stating and7

ascertaining the important facts of the case and the law applied to the individual case.

In re Adoption of Gibson, 23 Ohio St.3d 170, 492 N.E.2d 146 (1986).

In Werden v. Crawford, 70 Ohio St.2d 122, 435 N.E.2d 424 (1982) this Court

held that a Motion for Separate Findings of Fact and Conclusions of Law made

pursuant to Civil Rule 52/53 is applicable in regard to the determination of a child

custody Motion.

Appellate courts in Ohio in regard to Civil Rule 52/53 have also emphasized that

Separate Findings of Fact and Conclusions of Law are an important tool in order

to elicit the important portions of evidence and testimony from the trial court,

rather than to recite all of the facts of a case being heard. Nationwide Mutual Fire

Insurance v. Pendrey, 123 Ohio App.3d 91, 703 N.E.2d 334 (Lucas, 1997).

That Court held that a Separate Findings of Fact and Conclusions of Law should

be a declaration of those facts that the trial Court gave prime importance to in its

decision, and those facts which were especially relied upon by the court in arriving

at its ruling and decision. Nationwide Mutual Fire Insurance v. Pendrey, 123 Ohio

App.3d 91, 703 N.E.2d 334 (Lucas, 1997).

The declaration of only the most important and salient Findings of Fact in a case

then permits the parties on appeal to analyze whether the trial court had an adequate

factual basis for its decision. Kroeger v. Ryde , 86 Ohio App.3d 438, 621 N.E.2d 334

(Ottawa, 1993).

_ -ln-tn, e-case at 'Dar; tire _azriuf-ApYeals ^tLccl'^'Jhe dec ' s.atre^the miagr^ stY.atP.oireld^ha^

included extensive findings explaining his reasoning for recommending the change

in custody. The magistrate's decision was sufficient to constitute finds of fact and8

conclusions of law." Court of Appeals Decision, page 6.

The Fifth District Court of Appeals also held in the Decision in this case that

"where ... all pertinent findings were included in that decision, the court does not

err in denying a request for further findings", and cited an unreported Fifth District

case in support of that proposition. Court of Appeals Decision, page 4.

The Court of Appeals and the trial Court in the case at bar misconstrued the

case law from this Court and other Courts in regard to Civil Rule 52/53, in that the

Separate Findings of Fact and Conclusions of Law to be developed by the trial

Court in response to a Request for the same is to only include the IMPORTANT

facts in the matter as deduced by the trier of fact. A trial Court fashioning a

Separate Findings of Fact should then demonstrate how the important facts of the case

were applied to the applicable law of the case.

The error of the trial Court in refusing to craft a Separate Findings of Fact and

Conclusions of Law was particularly grievous in this case due to the fact that

Petitioner Erin Bowker and Intervening grandmother Betty Wood were forced to only

rely upon an Appellate Rule 9 (C) Statement of Evidence in order to prosecute their

appeal.

Therefore, it was absolutely imperative that the trial Court comply with the Civil

Rules in order to create and craft a proper Separate Findings of Fact and Conclusions

of law in this case for the benefit of the parties in prosecuting the appeal.

_-1~'-rom a prac ^ -'ewRrnrri ine_̂.efu...s,al of ota.. ^,^°-...;ralrsu^to-create_arprlape^fi^ner s vr --^

Separate Findings of Fact and Conclusions of Law in this case seems to be an overt

action to avoid assisting the parties to properly conclude the case and develop it for9

appeal. That behavior of the trial Court is particularly regrettable in that Civil Rule

53 specifically gives the trial Court the right to ask the parties to draft a proposed

Separate Findings of Fact and Conclusions of Law. A trial Court can then even

adopt the proposed Separate Findings of Fact and Conclusions of Law drafted

by any one (1) party, or take a few moments to combine and take the most salient

factors from each proposed Separate Findings of Fact and Conclusions of Law

submitted by the parties.

PROPOSITION OF LAW NO. 2

A TRIAL COURT MUST REFER AN APPELLATE RULE 9(C) AFFIDAVIT INLIEU OF TRANSCRIPT TO THE MAGISTRATE WHO PRESIDED ATA DOMESTIC RELATIONS CUSTODY HEARING, AND CANNOT STRIKE ORAMEND CONTENT FROM THE AFFIDAVIT WITHOUT ANY KNOWLEDGECONCERNING THE TESTIMONY AND EVIDENCE AT THE HEARING; ANYCONTENT STRICKEN FROM THE APPELLATE RULE 9(C) AFFIDAVIT MUSTBE REPLACED BY THE MAGISTRATE OR THE PARTIES MUST BEGIVEN THE OPPORTUNITY TO RESUBMIT THE AFFIDAVIT; ANINTERVENING GRANDMOTHER TO A POST-DECREE CUSTODY CASE IS ANOMINAL PARTY AND MAY ALSO USE AN APPELLATE RULE 9(C)STATEMENT OF EVIDENCE DUE TO HER ADULT CHILD'S INDIGENCY.

In the case at bar, due to the indigency of Petitioner Erin Bowker, that Petitioner

and Intervening Grandmother Betty Wood were forced to rely upon an Appellate

Rule 9 (C) Statement of Evidence rather than being able to order a transcript of the

hearing from the court's reporter in the case.

Irrespective of the mention of the Appeals Court to the contrary, the parties

also filed an Affidavit as their indigency and the unavailability of the transcript

when they filed Objections to fhe lVlagistrate's irecision inthe iower-Co- -a.rt.

The results of this case and the attitudes of both the trial Court and the Court

of Appeals to working with the Appellate Rule 9 (C) Statement of Evidence are10

indicative that this Court's holding in State ex rel. Motley v. Caners, 23 Ohio St.3d

56, 491 N.E.2d 311 (1986) is misunderstood at the trial Court level and misapplied

at the trial Court level.

At the oral argument of this case, one (1) of the members of the panel stated to

counsel for Petitioner Erin Bowker and Intervening grandmother Betty Wood that

there was no right to use an Appellate Rule 9 (C) Statement of Evidence when

a transcript was available, not being aware that indigency and inability to afford

a transcript made the transcript "unavailable." The Court did properly note

State ex rel. Motley v. Capers, 23 Ohio St.3d 56, 491 N.E.2d 311 (1986) in its

Decision and Opinion in this case, but then proceeded to misconstrue and emasculate

the intent of the holding in that case.

In the case at bar, the Court of Appeals remanded the Appellate Rule 9 (C) Statement

of Evidence to the lower court in order to adopt or amend the same, BUT SENT THE

MATTER TO THE TRIAL JUDGE WHO KNEW NOTHING ABOUT THE CASE

RATHER THAN THE COURT MAGISTRATE WHO PRESIDED AT THE

HEARING OF THE CASE.

The trial Court then proceeded to pare and cut the contents of the Affidavit

as argumentative, without having any knowledge of the evidence brought into

play at the hearing in the matter.

Furthermore, the trial Court which lacked any knowledge of the evidence in

' e case tli en did-nottake any furtFiEraction to-restore th-, sections-o-f-the Statement_-

of Evidence which were pared and cut in its ruling.

Appellate Rule 9 (C) states that a trial cotu-t reviews a proposed Statement of11

Evidence "for settlement and approval". Nothing in Appellate Rule 9 (C) gives

a trial Court the right to cut sections of the proposed Statement of Evidence without

substituting further factual evidence in place of the content which was pared by the

Court.

Furthermore, it is nonsensical to submit a proposed Appellate Rule 9 (C)

Statement of Evidence to a trial Court for approval and examination when the

trial Judge knows nothing about the hearing in the case. The Statement of Facts

and Conclusions of Law should have instead been submitted for approval to the

Magistrate who heard the evidence in the case.

Clearly, an Appellate Rule 9 (C) Statement of Evidence must be submitted

for "settlement and approval" to the person who actually heard the evidence in the

case, here the Magistrate, rather than an uninvolved trial Judge who knows nothing

concerning what has transpired in the case.

Practically speaking, the use of an Appellate Rule 9 (C) Statement of Evidence

is clearly not the preferred method to proceed with prosecuting an appeal, and

an indigent party who must rely on a Statement of Evidence and who cannot afford

the transcription of a hearing is already handicapped entering the appellate process.

This Court's holding in State ex rel. Motley v. Capers, 23 Ohio St.3d

56, 491 N.E.2d 311 ( 1986) was surely intended to assist indigent parties to appeal

their cases when they cannot afford to pay for a transcript of a trial or hearing.

i h-u-s h4la-'rirg iirSfiate ex ret Mvtiey-v. -Qapers23-OhioS.,t.3u

56, 491 N.E.2d 311 (1986) was intended to unlock a barrier and to create a solution

to a problem which this Court recognized often exists in Ohio courts.12

The trial Court in this case and the Court of Appeals in this case seemingly

did not appreciate the plight of Petitioner Erin Bowker and Intervening grandmother

Betty Wood in not having the financial resources to prosecute their appeal, and rather

than using Appellate Rule 9 (C) as a remedial solution, used unnecessary and nonsensical

technical requirements to block and bar the use of the Appellant's proposed Statement

of Evidence.

Counsel for Petitioner Erin Bowker and Intervening grandmother Betty Wood is

always grieved when the interpretation of remedial procedures created to assist

litigants is wrongly applied to instead stifle and halt the assistance the very rules of law

were intended to provide.

The case at bar is a child custody case where Petitioner Erin Bowker lost residential

parental rights and responsibilities towards her children, ages eight (8) and

nine (9).

Emasculating the right of a mother to appeal in a post-decree custody matter

in such a manner by not accepting the Appellate Rule 9 (C) Proposed Statement of

Evidence and by not replacing the sections pared by the uninformed trial Court is a

grievous example of form over substance, and a miscarriage of justice towards

Petitioner Erin Bowker and Intervening grandmother Betty Wood.

It should also be mentioned that the Court of Appeals overruled the particular

Assignment of Error concerning Intervening grandmother Betty Wood by stating

-ffiat-there was^ n"emonstta`ir,nt3iat-Retty Woodwas-t°rdigd:* and needed to

rely upon an Appellate Rule 9 (C) Statement of Evidence.

13

An Intervening grandmother such as Betty Wood is a nominal party, who

only appeared in the case to assure that her right to visit with her grandchildren

was protected in the post-decree proceedings.

It is a very heavy burden to place on a nominal party grandmother the requirement

that she must invest over $ 2,000.00 in a court transcript fee in order to protect her

statutory grandparent's rights in this case.

The indigency of Petitioner Erin Bowker should certainly have created the

right of nominal party and Intervening grandmother Betty Wood to also rely

upon and use an Appellate Rule 9 (C) Statement of Evidence.

CONCLUSION

Pursuant to Civil Rule 53, the entire purpose of requesting that a trial Court draft

and fashion a Separate Findings of Fact and Conclusions of Law is to assist the

litigants in discetning the major reasons why the trial Court ruled as it did, so that

the litigants can be assisted in bringing any areas of error to the Court of Appeals.

A properly crafted Separate Findings of Fact and Conclusions of Law should

notify the litigants of what facts the trial Court believed were important in reaching

its judgment and decision. Conversely, the litigants should be informed as to what

statutory and case law the trial Court relied upon in reaching its decision.

The act of the trial Court in this case of filing a one (1) sentence Entry which referred

the parties back to the Magistrate's Decision in the case as a purported Separate Findings

of-r̂ act and- Conulus=s orsiaw was g.osAy unfair t-the pzrties violatedOhilaw,_

and left Petitioner Erin Bowker and Intervening Grandmother Betty Wood unable to

properly present their case on appeal to the Court of Appeals.14

Appellate Rule 9 (C) has been recognized by this Court as an important tool even

in civil cases in order to permit parties who cannot afford the cost of the preparation of

a transcript to properly take their case to the Court of Appeals. That is especially true

in a post-decree Motion for Modification of Parental Rights, where the custodial parent

of minor children stands to lose full parental rights and responsibilities of minor children.

In the case at bar, the trial Court unjustly and unlawfully modified the Appellate Rule

9 (C) Statement of Evidence of the appealing parties without giving the parties the

opportunity to have the evidence statement amended in order to reflect the testimony and

evidence at their custody hearing.

Furthermore, a trial Judge who had not heard the custody proceedings and had no

idea of what had transpired in the case undertook the responsibility to rule upon the

sufficiency of the Appellate Rule 9 (C) statement, when the examination of the

Statement of Evidence should have been performed by the trial Court Magistrate,

who conducted the multiple days of hearings in the custody case.

15

Respectfully Submitted,

RAYMOND L. EICHENBERGERAttorney for Petitioner Erin Bowker

and Intervening GrandmotherBetty Wood

7620 Slate Ridge Blvd.Reynoldsburg, Ohio 43068(614) 866-9327Sup. Ct. # 0022464

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction has been served

upon the following attorney and Guardian ad Litem by ordinary U. S. mail this

I`( day of October, 2011:

Jeffrey A. Burkam43 E. Central Ave.Delaware, Ohio 43015Attorney for Petitioner Jason Bowker

E. Marianne Gabel103 N. Union St.Delaware, Ohio 43015Guardian ad Litem

RAYMOND L. EICHENBERGERAttorney for Petitioner Erin Bowker

and Intervening Grandmother

Betty Wood16

COURT OF APPEALSDELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JENNIFER ERIN BOWKER

Petitioner-Appellant

and

BETTY WOOD

Intervening Grand-Mother-Appellant

-vs-

JASON BOWKER

JUDGES:W. Scott Gwin, P.J.John W. Wise, J.Julie A. Edwards, J.

Case No.10CAF110085

OPINION

Petitioner-Appellee

CHARACTER OF PROCEEDING: Civil Appeal from Delaware CountyCourt of Common Pleas, DomesticRelations Division, Case No.04-DSC-10-482

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Petitioner-Appellants

_RAYMoNRL_ECHE N B E R G E R7620 Slate Ridge Blvd.Reynoldsburg, Ohio 43068

Guardian ad LitemE. MARIANNE BAGEL103 North Union Street, ADelaware, Ohio 43015

s €,dfV,•l; of Cormrts&j^^^C'PP,.ky

Affirmed

For Petitioner-Appeilee

JEFFREY A. BURKAM43 East Central AvenueDelaware, Ohio 43015

Court of AppealsDela"vare Co., Ohio

I I^,nks+* c. r°'.hy ?he vvithin be a truein this office.

Delaware County App. Case No. 10CAF110085 2

Edwards, J.

{¶1} Appellants, Jennifer Erin Bowker and Betty Wood, appeal a judgment of

the Delaware County Common Pleas Court awarding custody of J.B. and M.B. to

appellee Jason John Bowker and denying appellant Betty Wood's petition for

grandparent visitation.

STATEMENT OF FACTS AND CASE

{¶2} The marriage of appellant Jennifer Bowker and appellee was dissolved on

January 10, 2005. The parties have two children: J.B., born in 2002, and M.B., born in

2003. At the time of the dissolution, custody was awarded to Jennifer.

{¶3} On March 6, 2009, appellee filed a motion to modify the allocation of

parental rights and responsibilities and to escrow child support. On June 11, 2009,

appellant Betty Wood, the maternal grandmother of the children, filed a motion to

intervene. Appellee filed a motion to modify temporary custody on July 21, 2009 which

was granted by the court on September 11, 2009.

{¶4} At the time of the hearing on modification of custody, Jennifer was

employed as a free lance writer contracting through Amelia Kirkner for AMSvance.

Appellee was employed at Walmart as a grocery associate.

{¶5} At the time of the dissolution of the marriage in 2005, Jennifer was

employed by Trinity Health at St. Ann's Hospital as a unit coordinator in ICU and multi-

skilled technician. In 2006 or 2007, Jennifer hurt her shoulder moving a patient and was

prescribed Percocet, Vicoden, and other painkillers. When her prescriptions ran out,

she continued to use the drugs and was fired by her employer for stealing drugs on

November 26, 2007.

A, C r. L

Delaware County App. Case No. 10CAF110085 3

{¶6} Jennifer and the children moved in with a friend after Jennifer's

employment was terminated. She worked for the same friend for SEO, Search Engine

Optimization. This employment terminated in October of 2008, and her friend moved to

Georgia. Unable to afford the rent, Jennifer moved into her mother's residence.

{¶7} Jennifer was indicted for stealing drugs from St. Ann's in May of 2008.

She missed her first hearing and was arrested and incarcerated for ten days. She was

accepted into the treatment in lieu of conviction program.

{¶8} On Christmas Day, 2008, Jennifer and her mother got into an argument.

Jennifer moved in with her boyfriend, Richard "Fess" Minck. Fess was living with two

other men and did not have room for the children. On December 28, 2008, Jennifer

moved the children into appellee's home. At the end of February, 2009, Jennifer and

Fess obtained an apartment in the same complex where the children resided with

appellee. The parties began a shared parenting arrangement. However, when

appellee filed a motion for custody in March, 2009, Jennifer terminated the shared

parenting arrangement and reverted to the custodial provisions of the original decree.

{¶9} The magistrate found a change in circumstances sufficient to justify a

change in custody and recommended that appellee be named the custodial parent,

giving Jennifer visitation rights. The magistrate recommended that Betty Wood be given

visitation on any weekend that would otherwise be Jason's weekend.

{¶10} Appellants filed objections to the magistrate's report. Appellants did not

include a transcript of the proceedings, but instead submitted an affidavit of appelTants'

counsel of the evidence, arguing that a transcript of the proceedings was unavailable

due to the "outrageous sum" of $2,800.00 quoted by the court reporter to prepare a

Apf. 3

Delaware County App. Case No. 10CAF110085 4

transcript, which they claimed they could not afford. The trial court noted that a

transcript was available which appellants had elected not to pay the cost of, and that the

affidavit was not a statement of the evidence but a closing argument. Nonetheless, the

court considered the objections on the merits and named appellee the residential parent

of the children. The court sustained appellee's objection to grandparent visitation,

finding that the magistrate erred in awarding Betty Wood visitation during weekends

when appellee works because appellee works mostly at night, and it would benefit the

children to keep them settled in one household or the other on weekends. The court

concluded that Betty Wood could visit the children when they were with Jennifer.

{¶11} Appellants assign six errors on appeal:

{112} "I. THE MAGISTRATE AND TRIAL JUDGE ERRED AS A MATTER OF

LAW AND TO THE PREJUDICE OF APPELLANT ERIN BOWKER AND APPELLANT

BETTY WOOD IN FAILING TO ISSUE SEPARATE FINDINGS OF FACT AND

CONCLUSIONS OF LAW WHEN REQUESTED TO DO SO BY THE APPELLANTS.

{¶13} "II. THE MAGISTRATE AND TRIAL COURT ERRED AS A MATTER OF

LAW AND ABUSED THEIR DISCRETION IN FINDING THAT THERE WAS A CHANGE

OF CIRCUMSTANCE IN THE LIVES OF APPELLANT ERIN BOWKER AND THE TWO

(2) MINOR CHILDREN SO AS TO MERIT A MODIFICATION OF PARENTAL RIGHTS

AND RESPONSIBILITIES.

{¶14} "III. THE TRIAL COURT AND MAGISTRATE ERRED AS A MATTER OF

LAW AND ABUSED THEIR DISCRETION IN THE TEMP^Y OHAlNGE OF

PARENTAL RIGHTS AND RESPONSIBILITIES WHICH OCCURRED ON

SEPTEMBER 11, 2009.

A p r - y

Delaware County App. Case No. 10CAF110085 5

{¶15} "IV. THE TRIAL COURT AND MAGISTRATE ERRED AS A MATTER OF

LAW AND ABUSED THEIR DISCRETION BY FORCING APPELLANT ERIN BOWKER

TO TESTIFY AT THE VARIOUS HEARINGS IN THE CASE ABOUT HER MEDICAL

CONDITIONS AND BY REFUSING TO HONOR APPELLANT ERIN BOWKER'S

MEDICAL PRIVILEGE IN THE MATTER.

{¶16} 'V. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

HIS DISCRETION IN REDUCING THE GRANDPARENT VISITATION OF

INTERVENING PARTY BETTY WOOD WHICH HAD BEEN SET BY THE

MAGISTRATE.

{¶17} "VI. THE MAGISTRATE AND TRIAL COURT ERRED AS A MATTER OF

LAW AND ABUSED THEIR DISCRETION IN ORDERING THE APPOINTMENT OF A

GUARDIAN AD LITEM IN THE CASE OVER THE OBJECTION OF APPELLANT ERIN

BOWKER, AND THEN FORCING APPELLANT ERIN BOWKER TO PAY FOR HALF

OF THE FEES OF THE GUARDIAN AD LITEM, EVEN THOUGH SHE STATED IN

HER ORIGINAL MOTION THAT SHE COULD NOT AND CAN NOT AFFORD THE

SAME."

1

{¶18} In their first assignment of error, appellants argue the trial court erred in

failing to issue separate findings of fact and conclusions of law upon request.

{¶19} The magistrate's 11-page decision was filed on February 12, 2010. On

February 22, 2010, Jennifer filed a request for findings of fact and conclusions of law.

The magistrate ruled that the decision filed on February 12 shall constitute Findings of

Fact and Conclusions of Law. Judgment Entry, February 25, 2010. Appellant filed an

AP f 1 5

Delaware County App. Case No. 10CAF110085 6

objection to the magistrate's decision. The trial court found that a reading of the

magistrate's decision of February 12, 2010, shows that the magistrate made thorough

findings of fact and conclusions of law and overruled the objection.

{¶20} Civ. R. 53(D)(3)(a)(ii) provides:

{¶21} "Subject to the terms of the relevant reference, a magistrate's decision

may be general unless findings of fact and conclusions of law are timely requested by a

party or otherwise required by law. A request for findings of fact and conclusions of law

shall be made before the entry of a magistrate's decision or within seven days after the

filing of a magistrate's decision. If a request for findings of fact and conclusions of law is

timely made, the magistrate may require any or all of the parties to submit proposed

findings of fact and conclusions of law."

{¶22} This Court has previously held that where a magistrate in effect made

findings of fact and conclusions of law in the magistrate's decision and stated in

response to a timely request for findings that all pertinent findings were included in that

decision, the court does not err in denying a request for further findings. Fogress v.

McKee (August 11, 1999) Licking App. No. 99CA15, unreported.

{¶23} The decision of the magistrate included extensive findings explaining his

reasoning for recommending the change in custody. The magistrate's decision was

sufficient to constitute findings of fact and conclusions of law in the instant case.

{¶24} The first assignment of error is overruled.

11

{¶25} In their second assignment of error, appellants argue the court erred in

finding a change in circumstances sufficient to justify a change in custody.

qpP. 6

Delaware County App. Case No. 10CAF110085 7

{1126} We first must address the state of the record regarding the lack of a

transcript of the proceedings in this case.

{¶27} Civ. R. 53(D)(3)(b)(iii) provides

{¶28} "(iii) Objection to magistrate's factual finding; transcript or affdavit. An

objection to a factual finding, whether or not specifically designated as a finding of fact

under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence

submitted to the magistrate relevant to that finding or an affidavit of that evidence if a

transcript is not available. With leave of court, alternative technology or manner of

reviewing the relevant evidence may be considered. The objecting party shall file the

transcript or affidavit with the court within thirty days after filing objections unless the

court extends the time in writing for preparation of the transcript or other good cause. If

a party files timely objections prior to the date on which a transcript is prepared, the

party may seek leave of court to supplement the objections."

{¶29} Where an appellant fails to provide a transcript of the original hearing

before the magistrate for the trial court's review, the magistrate's findings of fact are

considered established and may not be attacked on appeal. Stark v. Haser, Delaware

App. No. 03CAF11057, 2004-Ohio-4641, ¶15. However, appellant argues that a

transcript of the proceedings was not available because she was indigent, and instead

produced an affidavit of the evidence. The trial court made a specific finding that a

transcript was available and further found that the affidavit of the evidence filed by

appellant was in the nature of closing argument rather than a statement of the evidence.

While appellants claimed at that time they could not afford a transcript, no affidavit of

indigency was filed prior to the court's decision.

APP- `

Delaware County App. Case No. 10CAF110085 8

{1[30} On appeal, appeilants sought to proceed by way of an App. R. 9(C)

statement of the evidence rather than filing a transcript, again claiming a transcript is

unavailable due to the indigency. This Court initially denied appellants' motion for an

order submitting their affidavit of the evidence to the trial court for settlement and

approval, finding that appellants had not averred that a transcript was unavailable.

Judgment Entry, January 31, 2011. Appellants filed a motion to reconsider, and filed an

affidavit of Jennifer Bowker stating that she is indigent and cannot afford to pay for a

transcript. This Court noted that appellants did not properly initiate App. R. 9(C)

procedure, but nevertheless we remanded the case to the trial court for the purpose of

approving or settling appellants' proposed 9(C) statement. The trial court did so on

March 15, 2011, striking the majority of appellants' statement as either conclusory or

argumentative and not in the nature of statements of fact. Appellants then filed a

motion to "abrogate the trial judge's entry of March 15 and remand to the trial court

magistrate." This Court overruled that motion on April 1, 2011.

{¶31} The Ohio Supreme Court has held that a transcript is "unavailable" for the

purposes of App. R. 9(C) to an indigent appellant unable to bear the cost of providing a

transcript. State ex rel. Motley v. Capers (1986), 23 Ohio St.3d 56, 491 N.E.2d 311.

The Tenth District has similarly concluded that if a transcript is unavailable due to

indigency for purposes of App. R. 9(C), it is similarly unavailable to an indigent person

pursuant to Civ. R. 53 and an affidavit of the evidence may be used in lieu of a

transcript. Gill v. Grafton Correctional Institution, Franklin App. No. 09AP-1019, 2010-

Ohio-2977.

Aff. S,

Delaware County App. Case No. 10CAF110085 9

{¶32} In the instant case, appellant Jennifer Bowker did not file an affidavit of

indigency until a final judgment had been issued by the trial court and the case was

pending on appeal. Therefore she did not demonstrate that the transcript was

unavailable for the proceeding on objections to the magistrate's report. In any event,

the statement of evidence provided pursuant to App. R. 9(C) was, as noted by the trial

court, not in the nature of a statement of the evidence but rather in the nature of a

closing argument, as it was made up almost entirely of conclusory and argumentative

statements rather than a statement of what evidence was presented by the parties in

the trial court. When the court struck the majority of this document, instead of seeking

to prepare and settle a new statement of the evidence which complied with App.R. 9,

appellants moved this Court to order the statement to be submitted to the magistrate

instead, which was denied by this Court. Given that there was not a valid statement of

the evidence or a transcript before the trial court on ruling on appellant's objections, nor

do we have anything by way of evidence left in the App. R. 9(C) statement by which to

challenge the findings of the magistrate concerning change in circumstances, we must

find the magistrate's findings of fact to be established. See Stark v. Haser, supra.

{¶33} R.C. 3109.04(E)(1)(a) provides for a change in the residential parent:

{¶34} "(E)(1)(a) The court shall not modify a prior decree allocating parental

rights and responsibilities for the care of children unless it finds, based on facts that

have arisen since the prior decree or that were unknown to the court at the time of the

--i -prior decree, that a change has occurred in the circumstances of the chld, the chi s

residential parent, or either of the parents subject to a shared parenting decree, and that

the modification is necessary to serve the best interest of the child. In applying these

/qPP, q

Delaware County App. Case No. 10CAF110085 10

standards, the court shall retain the residential parent designated by the prior decree or

the prior shared parenting decree, unless a modification is in the best interest of the

child and one of the following applies:

{135} "(i) The residential parent agrees to a change in the residential parent or

both parents under a shared parenting decree agree to a change in the designation of

residential parent.

{¶36} "(ii) The child, with the consent of the residential parent or of both parents

under a shared parenting decree, has been integrated into the family of the person

seeking to become the residential parent.

{¶37} "(iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child."

{¶38} The Ohio Supreme Court has further explained the standard for change of

residential parent status:

{¶39} "Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a), may

only be made 'based on facts that have arisen since the prior decree or that were

unknown to the court at the time of the prior decree, that a change has occurred in the

circumstances of the child, the child's residential parent, or either of the parents subject

to shared parenting decree, and that the modification is necessary to serve the best

interest of the child.' This is a high standard, as a 'change' must have occurred in the

life of the child or the parent before the court will consider whether the current

designation of residential parent and legal custodian should be altered." Fisher v.

Hasenjager, 116 Ohio St. 3d 59-60, 876 N.E.2d 546, 2007-Ohio-5589.

AfP- /°

Delaware County App. Case No. 10CAF110085 11

{140} The magistrate made the following findings regarding change in

circumstances:

{141} "A. change has occurred in the circumstances of the children and Jennifer.

Instead of the children being age 1 and 2, they are now 6 and 7. They attend first and

second grade. Jason has an IEP and is struggling with reading and writing. Jason was

almost a year behind in first grade. Jennifer has worked for St. Ann's, Amelia Kirkner -

SEO Seach Engine Optimization, Select Specialty Hospital, and now again with Amelia

Kirkner at AMSvance having been terminated with her employment at St. Ann's and

Select Specialty Hospital. Jennifer has lived at Sessis Drive with Amelia, at 8454

Norahrow with her mother, at 16 Crestview, Clintonville with Fess, at 80 Broad

Meadows with Fess, and since October of 2009 at 2234 Belcher (also with Fess). The

children have attended Colonial Hills Elementary, Worthington Estates Elementary,

Indian Springs Elementary, and currently due to the temporary court order Woodward

Elementary in the Delaware, Ohio school district. In November of 2007, Jennifer was

addicted to pain killers. She was caught and her employment was terminated. Jennifer

was charged with theft of drugs and received treatment in lieu of conviction. Jennifer

admitted to the guardian ad litem that she used cocaine. Jennifer has not had 12

straight months where she gave clean urine. In January of 2009, Jennifer gave no

sample. In February and March of 2009, Jennifer tested negative, but the tests were

'dilutes.' Jennifer gave no sample in April of 2009. During this time Jennifer posted

pictures on MySpace that showed a terrible open infection of her arm as ifTier arm was

being eaten by flesh-eating bacteria. Jennifer stated that her surgery in June of 2009

was to remove a completely encrusted cancerous tumor. Yet, Jennifer has not been

/} rP . I I

Delaware County App. Case No. 10CAF110085 12

prescribed any follow-up chemo therapy. Jennifer has also been diagnosed as being bi-

polar. These facts have arisen since the prior decree." Magistrate's Decision, February

12, 2010, page 8.

{142} The findings of fact of the magistrate show a change in the circumstances

of both the children and the residential parent. While appellant now wants to argue that

the findings concerning Jennifer's drug use are not supported by the evidence, none of

the statements remaining in appellant's App. R. 9(C) statement support appellant's

argument and appellant failed to file a transcript or proper affidavit of evidence on

objections to the magistrate's report in the trial court. Accordingly, the second

assignment of error is overruled.

III

{¶43} Appellant argues the court erred in awarding appellee temporary custody

of the children on September 11, 2009.

{1[44} This Court has previously held that temporary orders are merged into the

final decree and cannot be claimed as error. Ruby v. Ruby (August 11, 1999),

Coshocton App. No. 99-CA-4, unreported. Further, we have no transcript of the

proceedings nor is there anything in the statement of evidence to support appellant's

claim that the court abused its discretion in the order of temporary custody to appellee.

The findings of fact demonstrate that prior to the award of temporary custody, appellant

Jennifer Bowker had voluntarily placed the children in appellee's home when she

moved in with her boyfriend and there was no room for the children in her residence.

{¶45} The third assignment of error is overruled.

Arf.

Delaware County App. Case No. 10CAF110085 13

IV

{¶46} In their fourth assignment of error, appellants argue that the court erred in

forcing Jennifer Bowker to testify at various hearings in the case about her medical

conditions and refusing to honor her medical privilege.

{¶47} The trial court found that the magistrate did not order Jennifer to testify

concerning her medical history, she agreed to testify concerning her medical

information, after her objection on the basis of privilege was overruled, in order to allow

the trial to proceed. A finding of no medical privilege is immediately appealable, and

had Jennifer appealed this ruling, the trial would not have proceeded until the appeal

process was complete. See Brown v. Yothers ( 1988), 56 Ohio App.3d 29. Nothing in

the statement of evidence as settled by the trial court supports appellant's claim that

she was forced to testify concerning her medical condition, and we do not have a

transcript of the proceedings.

{¶48} The fourth assignment of error is overruled.

V

{4g49} In the fifth assignment of error, appellant Betty Wood argues the court

erred in reducing her grandparent visitation. Betty Wood has not filed an affidavit of

indigency in this case. Therefore, the transcript of the proceedings is not unavailable as

to Betty Wood, and a transcript has not been provided. When portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and affirm. Knapp v.

Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384.

Delaware County App. Case No. 10CAF110085 14

{¶50} The fifth assignment of error is overruled.

VI

{¶51} In the sixth assignment of error, appellant argues the court erred in

appointing a guardian ad litem and in requiring appellant Jennifer Bowker to pay half of

the fees of the guardian.

{¶52} Appellant argues at page 36 of her brief filed March 21, 2011, "Due to the

drastic space page restrictions imposed upon the Appellants by rulings of the Court in

this case, Appellants will argue this Assignment of Error in their reply brief." On March

3, 2011, this Court denied appellants' request to exceed the page limit for a brief and

granted leave to file a brief which complies with the Local and Appellate Rules on or

before March 25, 2011. Appellants had previously filed a brief which did not comply

with the page limitations set by rule.

{¶53} App. R. 16(A)(7) provides that assignments of error shall be argued in the

brief of appellant. App. R. 16(C) states that a reply brief is to "reply to the brief of the

appellee." New assignments of error cannot be raised in a reply brief. State v. Nichols,

Coshocton App. No. 01-CA-016, 2002-Ohio-4048, citing Sheppard v. Mack (1980), 68

Ohio App.2d 95, 427 N.E.2d 522.

{¶54} In the instant case, the sixth assignment of error is not argued in

appellants' brief and is therefore not properly before this court. Further, R.C.

3109.04(B)(2)(a) provides:

{1[55} "(2) If the court interviews any child pursuant to division (8)(1) o f t is

section, all of the following apply:

4rr

Delaware CountyApp. Case No. 10CAF110085 15

{¶56} "(a) The court, in its discretion, may and, upon the motion of either parent,

shall appoint a guardian ad litem for the child."

{¶57} Appellee moved the court for appointment of a guardian ad litem, and the

court interviewed the children as reflected by the magistrate's decision at page nine.

Therefore, appointment of the guardian was statutorily required. Further, although

appellant did not file an affidavit of indigency in the trial court, the court ordered her one-

half of the guardian's fees to be paid from the indigent fund established for such fees

and for Jennifer to reimburse the fund at the rate of $100 per month. Appellant was not

ordered to pay child support in this case, and has not demonstrated that the court

abused its discretion in ordering her to reimburse the guardian's fund to cover her share

of the fees.

Ar r is

Delaware County App. Case No. 10CAF110085 16

{158} The sixth assignment of error is overruled.

{¶59} The judgment of the Delaware County Common Pleas Court is affirmed.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

JAE/r0629

Lc-

JUDGES

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JENNIFER ERIN BOWKER

and

BETTY WOOD

-vs-

JASON BOWKER

Petitioner-Appellant

Intervening Grand-Mother-appellant

JUDGMENT ENTRY

Petitioner-Appellee : CASE NO. 10CAF110085

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas, Domestic Relations

Division, is affirmed. Costs assessed to appellant.

4PP.