Roth v. Roth

• Decision Date: 29 December 1989
• Docket Number: No. L-88-279,L-88-279
• Citation: 65 Ohio App.3d 768,585 N.E.2d 482
• Parties: ROTH, Appellee and Cross-Appellant, v. ROTH, Appellant and Cross-Appellee.
• Court: Ohio Court of Appeals

Page 768

65 Ohio App.3d 768

585 N.E.2d 482

ROTH, Appellee and Cross-Appellant, v. ROTH, Appellant and Cross-Appellee.

No. L-88-279.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided Dec. 29, 1989.

Syllabus by the Court

1. A nunc pro tunc judgment may only be rendered to correct a prior journal entry by changing the record to reflect judicial action actually taken but erroneously omitted. McKay v. McKay (1985), 24 Ohio App.3d 74, 75, 24 OBR 129, 129-130, 493 N.E.2d 317, 317-318.

2. Generally an appeal cannot be taken from a judgment nunc pro tunc but must have been taken from the order intended to be corrected thereby.

3. A claim of ineffective assistance of counsel is not a proper ground to reverse the judgment of the lower court in a civil case where the attorney was employed by the civil litigant.

George Gernot, III, Toledo, for appellee and cross-appellant.

Mervin S. Sharfman, Toledo, for appellant and cross-appellee.

HANDWORK, Presiding Judge.

This matter is before the court on appeal from the July 29, 1988 judgment entry of the Lucas County Court of Common Pleas, Domestic Relations Division.

On June 18, 1986, appellee, Lawrence R. Roth, filed a complaint for divorce and requested temporary custody of the minor child born to appellee and appellant, Ruth M. Roth Mills. On October 21, 1986, the court granted a divorce to appellee pursuant to an oral agreement reached by the parties during the hearing. However, on August 20, 1987, the court entered a decision attempting to set aside the divorce decree and also granted permanent custody of the minor child to appellee. On July 29, 1988, the court entered a nunc pro tunc journal entry granting a divorce to appellee effective October 21, 1986, the date of the original order granting the divorce, because its prior order of October 21, 1986, was not properly journalized. In the July 29, 1988 journal entry, the court incorporated the August 20, 1988 decision with regard to the resolution of custody matters. The court further ordered a property division and assessed fees and expenses between the parties. Both parties have sought an appeal from the July 29, 1988 judgment.

The nature of a nunc pro tunc judgment generally prevents an appeal therefrom. In re Estate of Parmelee (1938), 134 Ohio St. 420, 424, 13 O.O. 19, 21, 17 N.E.2d 747, 748. However, in this case an appeal from the nunc pro tunc judgment was proper.

The function of a nunc pro tunc journal entry is to correct an omission in a prior journal entry so as to enter upon the record judicial action actually taken but erroneously omitted from the record. McKay v. McKay (1985), 24 Ohio App.3d 74, 75, 24 OBR 129, 129-130, 493 N.E.2d 317, 317-318. A nunc pro tunc judgment cannot be used to change a prior journal entry unless it did not reflect what was actually decided by the court. State, ex rel. Cincinnati, v. Schneider (1950), 89 Ohio App. 96, 45 O.O. 242, 100 N.E.2d 863, and Herman v. Ohio Finance Co. (1940), 66 Ohio App. 164, 166-167, 19 O.O. 444, 445, 32 N.E.2d 28, 30.

Although the court labeled its July 29, 1988 order as a nunc pro tunc journal entry, it is a nunc pro tunc judgment only insofar as it corrected some omissions in the record. That portion of the order which sought to correct the October 21, 1986 order to properly journalize the granting of a divorce was nunc pro tunc in nature. In addition, the order sought to journalize the August 20, 1987 decision which had never been journalized. Therefore, that portion of the order also corrected the record to reflect judicial action taken but not entered properly in the record. However, the judgment entry also decided the remaining issues in the case which had not been decided previously.

Since the prior decision of August 20, 1987, which decided the custody issue, was not final and appealable due to the fact that it was interlocutory in nature and did not contain the necessary Civ.R. 54(B) language, appellant could not have appealed from that judgment. Therefore, although the July 29, 1988 order is a nunc pro tunc order, in part, it was also the final order in the case, and appellant properly filed a notice of appeal within thirty days from the date of the nunc pro tunc order. Consequently, appellant's appeal and appellee's cross-appeal were timely filed. We now proceed to address the merits of the appeals.

Appellant raises three assignments of error in her brief, which read as follows:

(1) "The trial court erred in granting custody of the parties [sic ] minor child to the Plaintiff/Appellee as the decision was made against the manifest weight of the evidence and further presents an abuse of discretion by the court."

(2) "The Court erred in sustaining objections to questions posed to Appellant's expert witness thus causing substantial prejudice and detriment to the presentation of her case and constituted an abuse of discretion."

(3) "Numerous error [sic ] and omissions arose during the conduct of the trial and that in their totality, Appellant suggests that the ineffectiveness of counsel caused the adverse outcome of her loss of custodial parental rights due to the individual and cumulative effect of prejudicial errors."

In her first assignment of error, appellant contends that the trial court's decision to grant appellee permanent custody of their minor child was contrary to the manifest weight of the evidence and constituted an abuse of discretion. Appellant makes two arguments: First, that the court abused its discretion by accepting the recommendation of the guardian ad litem who never interviewed the child or observed her interaction with either the parents or the stepparents and stepsiblings. Second, that the court abused its discretion by awarding the father custody after determining that a stepbrother in the father's household had sexually abused the child.

Whenever a trial court's discretion is subject to appellate review, it is to be examined to determine whether the exercise of that discretion was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, and Sinclair v. Sinclair (1954), 98 Ohio App. 308, 310-313, 57 O.O. 347, 348-349, 129 N.E.2d 311, 314-315. An abuse of discretion is not shown by the mere fact that the reviewing court would have come to a different conclusion. Cox v. Fisher Fazio Foods, Inc. (1984), 13 Ohio App.3d 336, 337, 13 OBR 414, 415-416, 469 N.E.2d 1055, 1057. Instead, the exercise of discretion must have been contrary to reason and the evidence. State, ex rel. Smith, v. Indus. Comm. (1986), 26 Ohio St.3d 128, 131, 26 OBR 110, 112, 498 N.E.2d 447, 449.

With respect to her first argument, there is nothing in the record to suggest that the trial court did not consider the basis for the guardian ad litem 's recommendation and weigh it accordingly. There is evidence in the record which indicates that the court-appointed psychologist also came to the same conclusion that the father should be granted custody. Both the guardian ad litem and the psychologist relied on information from others concerning the child's interaction with immediate and extended family members. Furthermore, both parents spoke highly of the other and acknowledged the other's relationship with and ability to care for the child. The child's interaction with the individuals involved is not a significant factor in this case because the parents are equally suitable in this area. The significant factors which tip the scale in the father's favor are that the extended family members reside in the immediate vicinity and frequently see the child and that the father is geographically more stable than the mother. Thus, we find that the court did not abuse its discretion by accepting the guardian ad litem 's recommendation.

Secondly, with regard to the sexual abuse allegations, the court specifically found that the mother did not coach her child to make the allegations of sexual abuse and that a child of her age does not generally have the ability to fabricate this type of allegation. Therefore, even though no physical evidence of sexual abuse was proven, the court found that the allegations were true. Despite this finding, the court awarded custody of the child to the father with direction that the child never be left with the stepbrother unsupervised.

Appellant believes it is unreasonable to expect that this protective order can be complied with when both parents work. Therefore, appellant concludes that the court abused its discretion by awarding custody to the father. Appellant argues further that the best interests of the child demand that she should be placed with the mother where no harm is threatened.

As we have stated previously, upon a review of the evidence and the factors which would determine custody in this case, the parents were almost equally ranked. However, the father's stability and location near the extended family tipped the scale in his favor. Appellant argues that the allegation of sexual abuse and the fact that she was the primary caretaker should have tipped the scale back in her favor.

With regard to the latter argument, the primary caretaker doctrine has not been adopted in Ohio. Thompson v. Thompson (1987), 31 Ohio App.3d 254, 255-257, 31 OBR 538, 539-541, 511 N.E.2d 412, 413-415. However, this fact can be taken into consideration when reviewing the other factors listed at R.C. 3109.04(C). Id. In this case, the court had evidence before it that the father had taken over the primary caretaker role during the period when the child was with him after the complaint for a divorce was filed. Appellant testified herself that the father was properly caring for the child. Therefore, the record indicates that the parties were equally capable of caring for the child.

With regard to the sexual abuse allegations, the record and the decision of the court dated ...