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holding that compliance with Civ. R. 52 is "mandatory in any situation in which questions of fact are tried by the court without intervention of a jury"
Summary of this case from Home Sav. Loan Co. v. Avery Place, L.L.C.Opinion
Nos. 81-611 and 81-761
Decided May 26, 1982.
Custody — Award by court — Findings of fact and conclusions of law required, when — Applicability of Civ. R. 52.
Civ. R. 52, requiring separate findings of fact and conclusions of law upon timely request, applies to change of custody proceedings which involve questions of fact tried and determined by the court without a jury.
APPEAL from and CERTIFIED by the Court of Appeals for Jefferson County.
James R. Werden, appellee, was granted a divorce from Derinda A. Werden (Crawford), appellant, on April 10, 1979. Custody of the couple's two minor daughters was awarded to the father with visitation rights to the mother. On May 4, 1979, appellant filed a motion for permanent custody of the children. After this motion was overruled, she filed a motion for reconsideration and for custody. She subsequently filed a motion for visitation rights. Hearings were held on these motions, and on December 27, 1979, the trial court entered judgment awarding permanent custody to the father.
Pursuant to Civ. R. 52, appellant requested the trial court file findings of fact and conclusions of law. The trial court denied the request, holding that findings of fact and conclusions of law were not necessary under Civ. R. 52 when the parties were before the court on motions. Appellant timely appealed to the Court of Appeals for Jefferson County.
The Court of Appeals remanded the cause to the trial court for the purpose of filing findings of fact and conclusions of law. The Court of Appeals, finding its decision on this issue to be in conflict with the decision of the Court of Appeals for Miami County in Hughes v. Hughes (1979), 65 Ohio App.2d 193, certified the record of case No. 81-761 to this court for review and final determination.
Following remand, the Court of Appeals issued its opinion affirming the trial court. Case No. 81-611 is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Weinman, Quinn, Powell, Adulewicz Kerr and Mr. Casimir T. Adulewicz, for appellee.
Stern, Stern Stern Co., L.P.A., and Mr. Gary M. Stern, for appellant.
The sole issue presented for our determination is whether Civ. R. 52 requires a trial court to issue findings of fact and conclusions of law after it is requested to do so by a party to a proceeding on a motion for change of custody.
Civ. R. 52 States in pertinent part:
"When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing or orally in open court requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law."
The trial court in the present case justified its refusal to file findings of fact and conclusions of law by stating that such findings were unnecessary since the proceedings had been held pursuant to motions. However, a motion for change of custody is not the kind of motion envisioned by Civ. R. 52 as an exception to the requirement for separate findings of fact and conclusions of law.
In so doing, the court evidently relied upon the following language of Civ. R. 52:
"Findings of fact and conclusions of law required by this rule and by Rule 41(B)(2) are unnecessary upon all other motions including those pursuant to Rule 12, Rule 55, and Rule 56." (Emphasis added.)
As the staff note to Rule 52, as amended July 1, 1971, observed:
"* * * findings of fact and conclusions of law are generally requested by the disappointed party so that he may elicit the rationale for the court's decision."
The purpose of the rule is therefore clear: to aid the appellate court in reviewing the record and determining the validity of the basis of the trial court's judgment. This reasoning is no less important in a change of custody proceeding than in any other trial to which Rule 52 has traditionally been applied. The only procedural distinction rests in the manner in which the case reaches the court.
The provisions of Civ. R. 52 are mandatory in any situation in which questions of fact are tried by the court without intervention of a jury. Since a motion for a change in custody contemplates an order which is necessarily based upon the determination of factual issues, Rule 52 is applicable to all proceedings held pursuant thereto.
As the Court of Appeals in the instant case correctly recognized:
"[In a hearing held pursuant to a motion for change of custody,] it is the trial judge's duty to determine if the moving party has proved sufficient factual elements to meet the requirements for a change of custody in accordance with O.R.C. Section 3109.04(B)."
Accordingly, we hold that Civ. R. 52, requiring separate findings of fact and conclusions of law upon timely request, applies to change of custody proceedings which involve questions of fact tried and determined by the court without a jury.
The judgment in case No. 81-761 is therefore affirmed, and the appeal in case No. 81-611 is dismissed as having been improvidently allowed.
Judgment affirmed in case No. 81-761.
Appeal dismissed in case No. 81-611.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and KRUPANSKY, JJ., concur.