Hartley v. Jones

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Hartley v. Jones

State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2381

Case Date: 06/10/2013

Plaintiff: Hartley

Defendant: Jones

Preview:[Cite as Hartley v. Jones, 2013-Ohio-2381.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
TIFFANY N. HARTLEY, ET AL.,
PLAINTIFFS-APPELLANTS,                                           CASE NO.   5-12-35
v.
SIDNEY T. JONES,                                                 O P I N I O N
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 21140246
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision:    June 10, 2013
APPEARANCES:
John C. Filkins for Appellants
Timothy A. McGee  for Appellees

Case No. 5-12-35
WILLAMOWSKI, J.
{¶1} Although  originally  placed  on  our  accelerated  calendar,  we  elect,
pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶2} Plaintiff-Appellant,  Tiffany  N.  Hartley,  et  al.,                                (“Tiffany”  or                                               “the
Mother”), appeals the judgment of the Hancock County Court of Common Pleas,
Juvenile  Division,  which  established  parental  rights  and  responsibilities,  a
visitation  schedule,  and  child  support  obligations  between  the  Mother  and
Defendant-Appellee, Sidney T. Jones (“Sidney” or “the Father”).   On appeal, the
Mother claims that the trial court erred in failing to name her as the sole residential
parent and by adopting what she claims is essentially a shared parenting plan.   The
Mother also claims the trial court erred when it deviated from the child support
schedule without a finding that the deviation was in the best interest of the child.
For the reasons set forth below, the judgment is affirmed in part and reversed in
part.
{¶3} Tiffany and Sidney are the parents of one minor child, Jaden, who was
born in May 2011.   The parties were never married.   In fact, the couple ended their
relationship when Tiffany was six months pregnant with Jaden.   Sidney claims
that he did not know she was pregnant and he did not learn about Jaden until the
evening of his birth.                                                                     (Mag. Dec. Stmt. of Facts, p. 2)   Sidney also claims that
Tiffany told him and others that he was not Jaden’s father and she did not name
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him as the father on the birth certificate.                                           (Id.)   Tiffany denies that she ever told
anyone that Sidney was not the father.                                                (Id.)     Sidney maintains that the first time
he was permitted to see Jaden was at the laboratory during genetic testing in July
of 2011, although Tiffany claims that she never denied him contact.                   (Id.)     The
results of the genetic testing indicated that the probability of Sidney’s paternity
was 99.99% and the parties have stipulated that Sidney is Jaden’s father.             (Id.)
The parties have spoken to each other very little since their relationship ended.
(Id.)
{¶4} This case commenced on September  14,  2011, when the Hancock
County  Child  Support  Enforcement  Agency                                           (“CSEA”)  filed  a  complaint  to
establish parentage and adopt the administrative child support order for unmarried
persons.   Sidney, as obligor, was to pay $134.95 per month for child support.
{¶5} On September 26, 2011, Sidney filed a pro se motion requesting that
shared parenting with an alternating weekly schedule be established; that his child
support payments be reduced; that Jaden Hartley’s last name be changed to his
surname, Jones; that he should be entitled to claim Jaden as a dependent on taxes
in alternating years; and, that he have access to Jaden’s medical records and other
official documents.
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{¶6} Tiffany filed a motion requesting that she be designated the residential
parent and legal custodian.                                                                 (Feb. 8, 2012 Mtn.)   She also requested child support
and the right to claim the dependency exemption for Jaden every year.
{¶7} A  hearing  was  held  on  the  motions  on  May  24,  2012  before  the
magistrate.    Both  parties  were  present,  along  with  their  retained  counsel.    A
representative  from  CSEA  also  appeared  and  both  parties  stipulated  to  the
information provided by CSEA.
{¶8} The magistrate’s decision was filed shortly thereafter on June 5, 2012.
The primary issues before the court involved custody, visitation, and child support.
Because this was an initial allocation of parental rights, it was not necessary to
establish a change of circumstances; the court only needed to consider the factors
affecting the best interest of the child under R.C. 3109.04(F).   See Self v. Turner,
3d Dist. No. 10-06-07, 2006-Ohio-6197, ¶¶ 6-8.
{¶9} The  magistrate’s  decision  outlined  the  relevant  statutory  factors
pertaining to the best interest of the child in detail as they applied to the facts in
this case.   The magistrate found that, with the exception of one factor, the parties
were “equal in this case.”                                                                  (Mag. Dec. p. 6)   The magistrate made the following
recommendations that are pertinent to the issues in this appeal:
(c)   The Court should find that it is in the best interests of the child
that  [Tiffany] be named the residential parent of Jaden for school
purposes.   The Court should further order that each parent should be
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considered the residential parent of Jaden anytime that he is in their
care. * * *
(d)   The Court should find that it is in the best interests of the child
that [Sidney] be entitled to parenting time with the child on a two
week  rotating  basis  as  follows:    Week  One,                                        [Jason]  should  be
entitled to parenting time with the child on Saturday commencing at
7:30 a.m. until the following Thursday at  7:30 a.m.    Week Two,
[Sidney]  should  be  entitled  to  parenting  time  with  the  child  on
Tuesday commencing at 7:30 a.m. until Thursday at 7:30 a.m.   The
schedule would then repeat.   This would give Father each Tuesday
and Wednesday and Mother each Thursday and Friday.   The parties
would then alternate extended weekend parenting periods.
(Mag. Dec. p. 10)
{¶10} The magistrate also recommended that Sidney be ordered to pay
$134.95 month child support from May through September of 2011, for the period
of time prior to when the CSEA support orders became effective.    However,
commencing  with  the  date  of  the  hearing,  May                                      24,                                                                  2012,  the  magistrate
recommended  that  the  court  order  $0.00  child  support  should  be  paid.    This
deviation was based upon the extended parenting time Sidney would have with the
child,  and  the  fact  that  Tiffany earned  more  than  twice  what  Sidney  earned
($19,136  and                                                                            $8,970  respectively,  pursuant  to  the  attached  child  support
worksheet dated 09/07/2011; and, $28,329 and $12,324 respectively pursuant to
the  worksheet  dated                                                                    05/25/2012,  after  both  parties  experienced  increases  in
income).
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Case No. 5-12-35
{¶11} The  magistrate  also  analyzed  all  of  the  factors  that  should  be
considered  when  deciding  a  request  to  change  a  child’s  surname  and
recommended that the trial court grant Sidney’s request to change Jaden’s name to
Jaden L. Jones.    See  In re  Willhite,  85 Ohio St.3d  28,  1999-Ohio-201.    The
magistrate  recommended  that  Tiffany be  entitled  to  claim  the  child  as  a  tax
dependent based on the fact that Tiffany’s salary was so much higher and that she
would be most likely to benefit from the tax deduction.
{¶12} Tiffany filed objections to the magistrate’s decision, claiming errors
in                                                                                       (1)  not  designating  her  as  the  residential  parent  and  Sidney  as  the  non-
residential parent; (2) implementing what was essentially a shared parenting plan
when not requested, and no plan had been submitted; (3) establishing what was
essentially a 5/2 - 2/5 day alternating plan when neither party requested such a
schedule; and, (4) ordering a deviation in the payment of child support to zero.
After reviewing Tiffany’s objections and Sidney’s response to her objections, the
trial court filed a lengthy decision on October 10, 2012, overruling the objections
and  finding  that  the  magistrate  had  properly  decided  the  factual  issues  and
appropriately applied the law.
{¶13} We  note  that  in  this  October  10th  “Judgment  Entry”  overruling
Tiffany’s objections, the trial court stated that, “Based upon its de novo review of
the transcript, the court has deemed it not necessary to hear additional evidence in
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order to issue this ruling.”                                                                  (Emphasis added.)   However, there is no evidence in
the record that a transcript was ever made or filed.   In fact, Tiffany’s objections
specifically stated that a transcript of the proceedings was not requested because
the alleged errors could be discerned from the face of the magistrate’s decision
and statutory authority.                                                                      (Doc. #21, 06/18/2012 Objections to Mag. Dec., p. 6).   It
is  well  established  that  a  trial  court  speaks  only  through  its  journal  entries.
Johnson v. Johnson,  194 Ohio App.3d  664,  2011-Ohio-3001,  ¶  16  (3d Dist.).
Therefore, it is imperative that all journal entries must be an accurate and truthful
reflection of what actually occurred, not merely a “boilerplate” rendition.   A trial
court must independently review the record and make its own factual and legal
findings; it must not merely utilize a template stating that it has done so.   See
Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, ¶ 4 (3d Dist.).
Fortunately in this case, as Tiffany indicated, a de novo review of the transcript
was not necessarily required in order to decide the legal issues that were raised.
{¶14} On November 8, 2012, the trial court filed its final judgment entry in
the  matter,  essentially  adopting  the  findings  and  recommendations  in  the
magistrate’s decision, with some relevant modifications.   The trial court ordered
that “Plaintiff, Tiffany N. Hartley, shall be named residential parent of Jaden Lee
Jones (Hartley).”                                                                             (Nov. 8, 2012 J.E., ¶ 3)   The trial court also ordered that “it is in
the best interest of the child that Defendant [Sidney Jones] be entitled to parenting
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Case No. 5-12-35
time with the child on a two week rotating basis  *  *  *,” utilizing the  5/2,  2/
5 schedule recommended by the magistrate.   (Id. at ¶ 4)
{¶15} It  is  from  this  judgment  that  Tiffany  now  appeals,  raising  the
following two assignments of error for our review.
First Assignment of Error
The trial court erred as a result of its failure to identify [Tiffany]
as the sole residential parent, and by its adoption of what is in
essence a shared parenting plan.
Second Assignment of Error
The trial court erred in granting a deviation in child support
and failed to find same to be in the best interest of the minor
child.
Standard of Review
{¶16} Custody issues are some of the most difficult decisions a trial judge
must make.   Therefore, those decisions rest within the sound discretion of the trial
court.   Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260; Miller v.
Miller, 37 Ohio St.3d 71, 74 (1988).   A court’s decision regarding an award of
custody is subject to reversal only upon a showing of an abuse of that discretion.
Id.; Trickey v. Trickey, 158 Ohio St. 9, 13-14 (1952).   A trial court will be found
to have abused its discretion when its decision is contrary to law, unreasonable,
not supported by the evidence, or grossly unsound.   Bruce v. Bruce, 3d Dist. No.
9-10-57, 2012-Ohio-45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010-
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Ohio-278, ¶ 17-18 (2d Dist.), citing Black’s Law Dictionary (8 Ed.Rev.2004) 11.
“A reviewing court will not overturn a custody determination unless the trial court
has acted in a manner that is arbitrary, unreasonable, or capricious.”   Pater v.
Pater, 63 Ohio St.3d 393 (1992).
{¶17} The reason for this standard of review is that the trial judge is in the
best position to view the demeanor, attitude, and credibility of each witness and to
weigh the evidence and testimony.   Davis, 77 Ohio St.3d at 418.   This is especially
true in a child custody case, since there may be much that is evident in the parties’
demeanor and attitude that does not translate well to the record.  Id. at 419.
[I]t  is  inappropriate  in  most  cases  for  a  court  of  appeals  to
independently weigh evidence and grant a change of custody. The
discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and
the impact the court’s determination will have on the lives of the
parties  concerned.  The  knowledge  a  trial  court  gains  through
observing  the  witnesses  and  the  parties  in  a  custody proceeding
cannot be conveyed to a reviewing court by a printed record. * * *
(Citations omitted.)  Miller, 37 Ohio St.3d at 74.
{¶18} In applying an abuse of discretion standard, a reviewing court is not
free to substitute its judgment for that of the trial court.   Hay v. Shafer, 3d Dist.
No. 10-10-10, 2010-Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d
128, (1989).   When reviewing a change of child custody proceedings, an appellate
court should be guided by the presumption that trial court’s findings were correct.
Miller at 74.
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Case No. 5-12-35
First Assignment of Error -
Residential Parent vs. Shared Parenting Plan
{¶19} In her first assignment of error, Tiffany maintains that the trial court
erred “in not designating her the sole residential parent and legal custodian of the
minor child,” and complains of the recommendations contained in the magistrate’s
decision stating that she should be the residential parent “for school purposes.”
(Appellant’s Br. p. 2)   She further complains that the magistrate was seeking to
implement a shared parenting plan “even though neither party had filed a request
for shared parenting,” and no proposed shared parenting plan had ever been filed
with the Court pursuant to R.C. 3109.04(g).   (Id. at p. 3)
{¶20} We find that the issues raised in this assignment of error are without
merit  for  several  reasons.     First  and  foremost,  Tiffany  is  asserting  errors
concerning the magistrate’s decision, not the trial court’s final judgment.               “Claims
of trial court error must be based on the actions taken by the trial court itself,
rather than the magistrate's findings or proposed decision.”   In re D.E.W., 2d Dist.
No. 2009 CA2, 2009-Ohio-4116, ¶ 19; Wuich v. Wuich, 2d Dist. No. 25481, 2013-
Ohio-956, ¶ 22.   The trial court’s review of a magistrate's decision is de novo.
Barrientos v. Barrientos,  196 Ohio App.3d  570,  2011-Ohio-5734,  ¶  4; Civ.R.
53(D).   The trial court must independently review the record and make its own
factual and legal findings, although it may rely upon the credibility determinations
made by the magistrate.   Id.; Gilleo v. Gilleo, 3d Dist. No. 10-10-07, 2010-Ohio-
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5191, ¶ 47.   Once the de novo review is complete, the trial court may adopt, reject,
or modify the magistrate's decision.   Tewalt v. Peacock, 3d Dist. No. 17-10-18,
2011-Ohio-1726, ¶ 31.
{¶21} In this case, after conducting an independent review, the trial court
issued the final, official judgment entry in this case and unequivocally named
Tiffany as the sole residential parent without any of the limiting or confusing
language that was contained in the magistrate’s recommendation.   Therefore, this
part of Tiffany’s assignment of error is meritless and, therefore, overruled.
{¶22} Contrary to Tiffany’s assertions, the magistrate did not recommend a
shared parenting plan and the trial court did not establish a shared parenting plan.1
While it is true that the parenting time Jaden will spend with each party has been
divided equally, that does not cause the parenting schedule to be considered a
shared  parenting  plan.    There  is  a                                                                        “difference  between  shared  parenting   (‘a
concept based on a plan’) and equal parenting time (‘a schedule’).”   See Wintrow
v.  Baxter-Wintrow,                                                                                             9th  Dist.  No.                           26439,  2013-Ohio-919,  ¶  5;  see  also  R.C.
3019.04(G),  (K), and  (L).   This Court recently affirmed a Mercer County case
similar to the current case, also between two unmarried parents, wherein the trial
court found that both parties were good parents and allocated them equal time with
their child.   See Hay v. Shafer, 3d Dist. No. 10-10-10, 2010-Ohio-4811, ¶ 13.   In
1 Furthermore, as the trial court noted when overruling Tiffany’s objections, her objection, which included
the allegation that “neither party had filed a request for shared parenting,” was factually erroneous because
Sidney did request shared parenting in his original motion.
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Hay v. Shafer, trial court had concerns about the parties' ability to cooperate
sufficiently in order to make the joint decisions necessary in a shared parenting
arrangement.   Id.
{¶23} The record shows that the magistrate and the trial court considered
all of the relevant factors in R.C. 3109.04(F) considering the best interest of the
child before deciding upon parental rights and responsibilities.   And, as to the
allocation of parenting time-companionship, or visitation rights, R.C. 3019.051(A)
provides:
[I]f the court has not issued a shared parenting decree, the court shall
* * * make a just and reasonable order or decree permitting each
parent who is not the residential parent to have parenting time with
the child at the time and under the conditions that the court directs *
* *.   Whenever possible, the order or decree permitting the parenting
time shall ensure the opportunity for both parents to have frequent
and continuing contact with the child, unless frequent and continuing
contact by either parent with the child would not be in the best
interest of the child.   The court shall include in its final decree a
specific schedule of parenting time for that parent.
R.C. 3019.051(A).   That is precisely what the trial court has done in this case.
{¶24} Based on the above, we do not find that the trial court abused its
discretion  in  the  allocation  of  parental  rights,  naming  Tiffany  the  residential
parent, or in the establishment of a schedule for parenting time, allowing Sidney,
the non-residential parent, to have “frequent and continuing contact” amounting to
equal time, with Jaden.   The first assignment of error is overruled.
Second Assignment of Error -
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Deviation from Child Support Guidelines
{¶25} Tiffany’s second assignment of error asserts that the trial court erred
in  deviating  from  the  child  support  schedule  and  reducing  Sidney’s  support
payments  to  zero.    She  claims  error  because  (1)  the  trial  court  was  without
authority  to  implement  the  shared  parenting  plan  which  grants  Sidney  the
additional parenting time upon which the deviation was based, and (2) the trial
court never found that the deviation was in the best interest of the child.
{¶26} The  first  part  of  this  assignment  of  error  need  not  be  addressed
because, as found in the discussion relating to the first assignment of error, the
trial court did not implement a shared parenting plan.   And, the trial court acted
well within its authority and jurisdiction when it granted Sidney more parenting
time with Jaden than is set forth the court’s standard “Companionship Schedule”
(Appendix J).   See R.C. 3109.051.   There is no authority or requirement that a trial
court  assign  parenting  time  according  to  a  jurisdiction’s                           “standard”  parenting
schedule.     In  fact,  Hancock  County’s                                                 “Parenting  Plan  and  Companionship
Schedule” (Rev. 11/1/10), specifically indicates that it is basically a “fall-back”
schedule to be used if “the Court Order or Decree specifically “indicates that the
Court Schedule is the Order for companionship” or “unless otherwise agreed by
the parents.”                                                                              (App. J.)   In this case, the trial court did not choose to utilize the
standardized  “Court Schedule,” or leave the scheduling to the discretion of the
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parents; it ordered a very specific schedule of visitation designated to allow both
parents to have equal parenting time with Jaden.
{¶27} Generally,  an  appellate  court  reviews  the  trial  court’s  decision
concerning child support for an abuse of discretion.   Booth v. Booth, 44 Ohio St.3d
142, 144 (1989).     The amount of child support calculated using the child support
guidelines and worksheet is rebuttably presumed to be the correct amount of child
support. R.C. 3119.03; Marker v. Grimm, 65 Ohio St.3d 139 (1992).   The trial
court may order  an amount that deviates from the  worksheet amount if  such
amount would be “unjust or inappropriate and would not be in the best interest of
the child.”   R.C. 3119.22.     The party asserting that a deviation is warranted bears
the burden of presenting evidence that proves the calculated amount is unjust,
inappropriate, or not in the best interest of the child.   Pahl v. Haugh, 3d Dist. No.
5-10-27, 2011-Ohio-1302, ¶ 38.
{¶28} R.C. 3119.23 sets forth a list of non-exclusive “factors relevant to
granting deviation” that a trial court may consider in determining whether to grant
a deviation pursuant to R.C. 3119.22.   See Pauly v. Pauly, 80 Ohio St.3d 386,
1997-Ohio-105.    Factors relevant to this case, and that were discussed in the
magistrate’s decision and the trial court’s October  10,  2012 order  (overruling
Tiffany’s objections), are:
(D)   Extended parenting time or extraordinary costs associated with
parenting time, * * *
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(E)   The  obligor  obtaining  additional  employment  after  a  child
support order is issued in order to support a second family;
R.C. 3119.23.
{¶29} Tiffany also raised this issue in the trial court below in her objections
to the magistrate’s decision.   The trial court did a lengthy and detailed analysis and
determined the magistrate’s decision had complied with the statutory requirements
to permit a deviation, i.e., a determination that the worksheet amount would be
unjust and not in the best interest of the child, and the provision of providing
specific factual reasons in support of this determination.   The trial court’s order
stated as follows:
[Tiffany] claims that the Magistrate never determined the deviation
was in the best interest of the child.                                                    * * * However, the Magistrate
considered the best interests of the child when she determined that
there should be a deviation in the amount of child support to be paid
pursuant to R.C. 3119.22.   R.C. 3119.22 allows the court to order a
deviation in support if:
“after considering the factors and criteria set forth in section 3119.23
of the Revised Code, the court determines that the amount calculated
pursuant  to  the  basic  child  support  schedule  and  the  applicable
worksheet, through the line establishing the actual annual obligation,
would  be  unjust  or  inappropriate  and  would  not  be  in  the  best
interest of the child.   R.C. 3119.22.”
The Magistrate did not explicitly list the factors in R.C. 3119.23 in
her decision, but it is clear she considered many of them in her
analysis.    The  Magistrate’s  determination  that  there  should  be  a
deviation in the amount of child support to be paid was based on the
fact that [Sidney] would be spending more time with his son.                              (Mag.
Dec. at  10(d).)    One of the factors in R.C.  3119.23 is  “extended
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parenting time.”   Id.; R.C. 3119.23(D).   The Magistrate also noted
that                                                                                        [Tiffany]  earns  more  income  than      [Sidney].  Id.;  R.C.
3119.23(G).   R.C. 3119.23 also allows a court to consider “any other
relevant  factor.”    Id.;  R.C.                                                            3119.23(P).    The  Magistrate’s  prior
consideration  of  the  best  interest  of  the  child  involved  factors
relevant to determining the appropriate child support.                                      (See Mag.
Dec. at 3-7).
(Oct. 10, 2012 J.E.)
{¶30} The record clearly demonstrates that both the magistrate and the trial
court determined that a deviation in child support from the statutory worksheet
amount was appropriate in this case, within the context of arriving at a decision
that was in the best interest of the child.   The decisions followed the statutory
requirements and included the appropriate worksheet computations along with the
specific facts supporting a deviation, as set forth by R.C.  3119.23.    However,
neither the trial court nor the magistrate used the “magic words” contained in the
statute and specifically stated that the calculated worksheet amount  “would be
unjust  or  inappropriate  and  would  not  be  in  the  best  interest  of  the  child.”
Therefore, we must determine whether the absence of this specific finding in the
judgment entry is fatal to this holding and requires remand.   The statute states:
If it deviates, the court must enter in the journal [1] the amount of
child support calculated pursuant to the basic child support schedule
and the applicable worksheet, through the line establishing the actual
annual obligation, [2] its determination that that amount would be
unjust or inappropriate and would not be in the best interest of the
child, and [3] findings of fact supporting that determination.
R.C. 3119.22 (Emphasis and enumeration added.)
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{¶31} Although we can certainly infer from the record that the trial court
found that the amount of child support computed according to the guidelines was
inappropriate  and  not  in  the  best  interest  of  the  child,  R.C.  3119.22  is  quite
specific in requiring that  “the court must enter in the journal” all three of the
statutory requirements.    We acknowledge that there are situations, concerning
different statutes, when it has been found that a trial court may not be required to
explicitly use the “magic words,” although it is usually noted that this is not the
best practice.   See e.g., In re. R.C., 3d Dist. 16-09-11, 12, 13, 2010-Ohio-3800
(concerning a placement for permanent custody); Nigro v. Nigro,  9th Dist. No.
04CA008461,                                                                                   2004-Ohio-6270,   ¶   6   (re  explicit  statement  of   “change  of
circumstances”); In re Curtis, 3d Dist. No. 9-99-74,75, 76, 2000-Ohio-1725 (in
permanent custody placement, failure  to  use specific words stating  “the  child
cannot be placed with either of his parents within a reasonable time”).   However,
in this case, the language of the statute stating the requirements as to what must be
placed in the journal entry is quite specific.
{¶32} The Ohio Supreme Court discussed the mandatory requirements of
this statute and found that “the acceptable procedure for ordering an amount of
child support which deviates from the amount  ‘rebuttably presumed’ to be the
correct amount due is for the court to fully comply with the requirements of [the
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statute]2.”                                                                                                   (Emphasis sic.)   Marker v. Grimm, 65 Ohio St.3d 139 (1992).   This
Court has recognized the importance of this holding and strict compliance in this
type  of  situation,  when  we  held  that                                                                    “any  deviation  from  the  child  support
guidelines  must  be  found  to  be  in  the  best  interest  of  the  children                               *  *  *.”
(Emphasis sic.)   Gatliff v. Gatliff, 89 Ohio App.3d 391, 393-394 (3d Dist.1993).
We  further  stated  that  the  terms  of  the  statute  “are  mandatory and  ‘must  be
followed literally and technically in all material respects.’”   Id. quoting Marker v.
Grimm, 65 Ohio St.3d at 143.
{¶33} The trial court failed to follow the literal and technical requirements
of R.C.  3119.22 in its judgment entry.    Therefore, we sustain this part of the
second assignment of error, and remand for further consideration as appropriate
under the statute.
{¶34} Having found no error prejudicial to  the Appellant herein in the
particulars assigned and argued as to the first assignment of error, we affirm the
judgment of the trial court.   However, we sustain the second assignment of error
and remand for further consideration consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
ROGERS and SHAW, J.J., concur.
2 R.C. 3119.22 was previously R.C. 3113.215(B)(1).   The essential language of the statute relevant to this
case has not changed.
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