White v. White

• Decision Date: 27 January 1977
• Citation: 362 N.E.2d 1013,4 O.O.3d 225,50 Ohio App.2d 263
• Parties: , 4 O.O.3d 225 WHITE, Appellant, v. WHITE, Appellee.
• Court: Ohio Court of Appeals

Page 263

50 Ohio App.2d 263

362 N.E.2d 1013, 4 O.O.3d 225

WHITE, Appellant, v. WHITE, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 27, 1977.

Syllabus by the Court

1. Civil Rule 53 requires an order of reference before a referee has authority to conduct a hearing on a motion filed by a party. A local rule of court adopted pursuant to Section 5, Article IV of the Ohio Constitution and Rule 83 of the Ohio Rules of Civil Procedure which provides for automatic reference in certain types of cases satisfies the requirement of Civil Rule 53 that there must be an order of reference before a referee has authority to entertain a hearing on a matter so referred.

2. As to the right to a record of the evidence, R.C. 2301.20, Civil Rule 53(C) and Civil Rule 54(D) are to be read in pari materia and inasmuch as they are in harmony and not in conflict they clearly require the court to provide a shorthand reporter to record the evidence if properly requested by a party to a suit or his attorney. Civil Rule 53(C) places an affirmative duty upon a party who wants a court reporter to record the evidence at a hearing before a referee to file a written motion requesting a court reporter to make a record of the evidence. If the movant complies with the requirements of Civil Rule 53(C), the trial court has a mandatory duty to provide a court reporter at the hearing to make a record of the evidence and the trial court does not have discretion to grant or deny a request for a court reporter but must grant such request. Failure to provide a court reporter under these circumstances is prejudicial error as a matter of law.

3. When an issue is referred to a referee for hearing and a party so requests and the court so orders, the referee shall make a record of the evidence offered and excluded in the same manner as and subject to the same limitations upon a court sitting without a jury. Civil Rule 53(C) does not require an advance payment, security for costs or a surety bond.

4. It is the appellant's option whether to use a verbatim or narrative transcript of the evidence or proceedings upon appeal in compliance with Appellate Rule 9(B), (C), and (D). The fact that an appellant may use a narrative transcript of evidence in an appeal does not justify the trial court's refusal to grant a proper motion for a record of the evidence when a party complies with Civil Rule 53(C).

5. The mere filing of a notice of appeal from the judgment of the trial court without a stay of execution being issued does not deprive the trial court of authority to enforce its judgment.

Donald V. White, pro se.

Alan Arnold, Cleveland, for appellee.

KRENZLER, Judge.

On November 15, 1974, the plaintiff-appellant, hereinafter referred to as the appellant, obtained a divorce from the defendant-appellee, hereinafter referred to as appellee, in the Domestic Relations Division of the Court of Common Pleas of Cuyahoga County.

In the divorce decree, the court awarded custody of the minor children to the appellee until further order of the court and ordered the appellant to pay the appellee $45 per week for child support, $850 in alimony for attorney's fees, and $3,000 for arrearages of temporary alimony and support.

On January 7, 1975, the appellee filed a motion to require appellant to show cause why he should not be held in contempt of court for failure to comply with the divorce decree in that he had not made any of the child support or alimony payments ordered by the court.

On January 8, 1975, the appellant filed a notice of appeal contesting the validity of the November 15, 1974, divorce decree.

On March 14, 1975, the appellant filed a written request for a court reporter to be present at the hearing before the referee on the motion to show cause. On March 18, 1975, a hearing was held before a referee of the Domestic Relations Division on said motion but a court reporter was not present.

On April 14, 1975, the referee filed a report recommending that the appellant be ordered to continue to make the payments ordered in the divorce decree plus $10 per week on a $280 arrearage. On April 24, 1975, the appellant filed objections to the report of the referee. The trial court approved the referee's recommendation on August 8, 1975, and ordered that the appellant continue with the current order of the court plus $10 a week on the arrearage.

The appellant timely appealed from the judgment of the trial court affirming the report of the referee and has one assignment of error:

'The order of the divorce court is contrary to law including Ohio Civil Rules 53 and 75(H) and also violates the plaintiff-appellant's constitutional rights, and represents error and abuse of discretion by the court.'

This one assignment of error raises three questions for resolution:

1. Is it necessary to journalize an order of reference in every matter referred to a referee under Civil Rule 53?

2. When a party to a hearing before a referee in the Domestic Relations Division of Common Pleas Court makes a request for a court reporter and that such attendance be taxed as costs, must a court reporter be provided and the services taxed as costs?

3. When a judgment of the Domestic Relations Division of the Common Pleas Court is appealed to the Court of Appeals, does the trial court have authority to enforce its judgment in the absence of a stay order or does the mere filing of a notice of appeal deprive the Common Pleas Court of authority to enforce its judgment?

I.

The appellant's first argument under his one assignment of error is that the referee lacked jurisdiction to hear the appellee's motion since the trial court did not enter a journalized order of reference.

In order to resolve this question, we must review Rule 53 of the Ohio Rules of Civil Procedure, which is concerned with court-appointed referees. Civil Rule 53 clearly requires an order of reference in order for a referee to have authority to conduct a hearing on a motion filed by a party. This is best evidenced by reviewing pertinent portions of Civil Rule 53.

Civil Rule 53 provides that a court may appoint one or more referees to hear any issue or issues in any case is which the parties are not entitled to a trial by jury or in any case in which the parties consent in writing or in the record in open court to submit an issue or issues to a court-appointed referee. Civ.R. 53(A).

There must be an order of reference and such order may specify or limit a referee's powers and may direct him to report only upon particular issues or do or perform particular acts. Subject to the specifications and limitations stated in the order, the referee has power to regulate all proceedings or hearings before him as if by the court and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. Civ.R. 53(C).

Civil Rule 53(C) also provides that when a party so requests and guarantees the costs and the court so orders, the referee shall make a record of the evidence offered and excluded in the same manner and as subject to the same limitations upon a court sitting without a jury.

A referee shall prepare a report upon the matters submitted to him by the order of reference and shall file the report with the clerk of the court and mail a copy to the parties. Civ.R. 53(E)(1).

A party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report and such objections shall be considered a motion. Upon consideration of the objections, the court may adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions, or hear the matter itself. Civ.R. 53(E)(2).

The report of the referee shall be effective and binding only when approved and entered as a matter of record by the court. Civ.R. 53(E)(5).

While Civil Rule 53 clearly requires an order of reference, it does not specify the form of the order nor does it require the court to journalize an individual order of reference for each issue submitted. In other words, there is no specific requirement, limitation, or restriction on the manner or method of the court entering an order of reference.

Thus, an order of reference may be made in one of at least three ways:

1. An individual journalized order of reference in a particular case or several cases;

2. A blanket journalized order of reference in a particular type or types of cases;

3. A local rule or rules providing for automatic reference in certain types of cases.

In the present case, there was not an individual or blanket journalized order of reference referred to in 2 and 2 above. However, the Common Pleas Court of Cuyahoga County, pursuant to Section 5, Article IV of the Ohio Constitution, and Rule 83 of the Ohio Rules of Civil Procedure, adopted local rules.

Local Rule 23 deals with divorce, alimony and annulment. Local Rule 23(A) provides that all motions filed pursuant to Civil Rule 75(N) shall be heard before a referee. Local Rule 23(B)(4) lists the motions to be heard by a judge unless otherwise ordered by the court. This includes motions to advance; for attorney's fees; for compelling discovery; for relief after judgment; for a new trial; to vacate, dismiss or reinstate; for summary judgment; to set aside separation agreements; compelling one party or the other to answer interrogatories; requesting production of documents; to consolidate; for judgment and failure to answer interrogatories; to strike; to quash, and for findings of fact and conclusions of law. All other motions shall be set before a referee.

Local Rule 23 authorizes automatic reference to a referee to hear a motion to show cause because it is not one of the fifteen motions that must be heard by a judge unless there is a specific order of reference.

It is our conclusion that the adoption of Local Rule 23 by the Common Pleas Court of Cuyahoga County satisfies the requirement of...