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- Local Rule 8
Local Rule 8
PRACTICE IN DIVORCE, DISSOLUTION AND LEGAL SEPARATION
8.01 COMMENCEMENT OF THE ACTION
(A) In every case of a complaint, answer or counterclaim for divorce, annulment, legal separation, custody, child support or petitions for dissolution, and in all applicable post decree motions, the filing party must provide all of the documents as shown on Appendix A of the Miami County Local Rules of Court. The Clerk of Courts shall not accept and the court will reject, any filing which is not accompanied by all documents required in Appendix A.
(B) The information contained in all required Domestic Relations forms and affidavits shall be treated in hearings and in consideration of the cause of action as though it were obtained in answer to questions propounded by the Court to the party filing said forms, and shall be subject to cross examination in all proper respects.
(C) The caption in every complaint, petition, motion and all orders shall state the name and address of all parties and shall include a title of its content. If any information is not known, there shall be a certification that this information is unknown in its place.
(D) The caption of all subsequent pleadings, motions, briefs or other papers shall also state the case number assigned, and the name of the Judge and Magistrate to whom the case is assigned.
(E) All papers filed with the Clerk of Courts by an attorney shall bear the attorney's name, Ohio Supreme Court registration number, firm name (if any), office address, telephone number, email address and a designation of which party they represent.
(F) The party filing a complaint for divorce, annulment, legal separation, custody, child support or petitions for dissolution, and in all applicable post decree motions shall file, with the Clerk of Courts, the original with four (4) copies when there are children or the original and three (3) copies when there are no children.
8.02 PROCEDURE FOR SEEKING TEMPORARY ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES
(A) At any time during the pendency of an action of divorce or legal separation involving parental rights and responsibilities and support of minor children, either party may seek temporary allocation of parental rights and responsibilities by filing a Motion and Affidavit or Counter Affidavit for Temporary Orders Without Oral Hearing using Affidavit 5. The party that files the motion shall also present to the Magistrate’s office a proposed Magistrate’s Order temporarily allocating parental rights and responsibilities. Failure to submit a proposed Magistrate’s Order shall result in the dismissal of the motion. Unless otherwise ordered by the Court, said entry shall order as follows:
(1) Name which parent is temporary residential parent and legal custodian;
(2) Address parenting time for the noncustodial parent;
(3) Support for minor child(ren) and an effective date for the commencement of the obligation which shall be established as follows:
(a) Child support must be calculated and an order filed in accordance with the Ohio Revised Code. The calculation must be supported by a worksheet or summary.
(b) In addition to the monthly support payments, the temporary order shall also order payment of extraordinary medical, hospital, dental and optical expenses on an equal basis.
(c) All orders of support shall include a provision for processing charge and shall be payable through Ohio Child Support Payment Central.
(B) Where the parties are residing together, the order shall direct both parties to be responsible for the payment of all household expenses and to provide full and adequate support for the children to the extent of their financial abilities without any provision as to the allocation of parental rights and responsibilities. In the event the parties cease to reside together in the same residence, the residential parent may seek child support. If the children are living in the same house with both parents when the complaint for divorce is filed, neither parent shall remove the children from the marital residence without prior Court approval.
8.021 STANDARD PARENTING TIME SCHEDULE
(A) In accordance with R.C. 3109.051(F)(2), the Court adopts as its standard parenting time guidelines the schedule attached hereto as an Appendix for those cases where parents live within 90 miles of each other. Unless the parties agree otherwise or subject to a modifying order, the parenting time schedule shall be the temporary and permanent order of this Court relative to the rights and obligations of the residential and non-residential parents. The factors set forth in the Ohio Revised Code and the best interests of the child(ren) have been considered in establishing this order.
8.022 OUT-OF-STATE PARENTING TIME SCHEDULE
(A) In accordance with R.C. 3109.051(F)(2) and recognizing the needs of children and parents who live significant distances from each other, the Court adopts as its standard parenting time guidelines the schedule attached hereto as an Appendix for those cases where parents live more than 90 miles from each other. The factors set forth in the Ohio Revised Code and the best interests of the child(ren) have been considered in establishing this order.
8.03 PROCEDURE FOR SEEKING TEMPORARY SPOUSAL SUPPORT
(A) Either party may request a temporary order with regard to temporary spousal support and/or an allowance for expenses by filing a Motion and Affidavit or Counter Affidavit for Temporary Orders Without Oral Hearing using Affidavit 5. Copies of such motions, affidavits and counter-affidavits shall be served in accordance with the Civil Rules. The party that files the motion shall also present to the Magistrate’s office a proposed Magistrate’s Order granting the relief requested. Failure to submit a proposed Magistrate’s Order shall result in the dismissal of the motion.
(B) The Court may upon review of the affidavits submitted grant the request, refuse to issue a Civ. R. 75 order or may set the matter for an evidentiary hearing.
8.04 PRACTICE ON TEMPORARY ORDERS
(A) All temporary orders may be executed by a Judge or Magistrate.
(B) Upon the issuance of a temporary order upon affidavit, either party may request an evidentiary hearing to have the Magistrate consider modification of said Order. A request for an evidentiary hearing must be filed in the Clerk of Courts’ office within twenty-eight (28) days of the issuance of the Order accompanied by an entry setting hearing with service of a copy on opposing party or counsel. Such matters shall be set for hearing by Magistrate’s Order, within twenty eight days with notice according to Civil Rules. Said request does not stay the temporary orders.
(C) Any modification of a temporary child support order shall be consistent with R. C. Chapter 3119.
8.05 TEMPORARY RESTRAINING ORDERS
(A) Motions for restraining orders as provided by the Ohio Rules of Civil Procedure relating to domestic cases shall be accompanied by affidavits sworn to absolutely, setting forth the specific basis of the required relief. These motions and orders shall be filed separate from the complaint or other pleadings.
(B) Further all entries ordering temporary restraining orders shall be filed separate from the motion.
(C) If considered meritorious, these restraining orders may be granted ex parte by the Judge or Magistrate. After journalization the Clerk of Courts shall serve a certified copy of the order on the affected party at the address in the complaint, counsel of record for the affected party, if any, and any other individual or institution affected by the order. All service shall be by regular mail unless otherwise requested.
8.06 SEMINAR FOR PARENTS
(A) This rule applies to all parents in all original divorce, dissolution and paternity actions and (other domestic relations actions as ordered by the Court) filed after March 1, 1995, where the interests of children under 18 years of age are involved.
(B) All parents shall successfully complete the educational seminar entitled “Helping Children Succeed After Divorce.”
(C) The program shall be successfully completed prior to the filing of the decree of dissolution or within forty-five days of the service of the original complaint upon the parent Defendant.
(D) Upon a party’s failure to successfully complete the seminar pursuant to this rule, the assigned Judge may take any appropriate action, including but not limited to actions for contempt and/or denial of parenting time.
(E) For good cause shown, the assigned Judge may waive the requirement of completion of this seminar in individual cases.
(F) The attorney for the moving party shall complete and file a Magistrate’s Order (Parenting Seminar Pre-Registration) form along with the Complaint for Divorce to be served on opposing party. (See DR Form 21).
(G) For good cause shown upon written application the Administrative Judge may permit attendance with completion of the Seminar by persons who are not parties in divorce, dissolution, or paternity actions originating in Miami County Common Pleas Court General Division. Each written application shall include:
(1) A true copy of a Court Order which compels the applicant’s attendance and completion of a similar seminar in conjunction with a pending domestic relations proceeding.
(2) A certification from the Assignment Commissioner of the Magistrate’s Office verifying there is availability for the attendance of the applicant on the date requested.
(3) Payment in the amount of $50.00 per applicant payable in advance to the Clerk of Courts at the time the application is made for cases not originating in Miami County Common Pleas Court General Division or Juvenile Division. Payment in the amount of $10.00 per application payable in advance to the Clerk of Courts at the time payment is made for cases originating in the Juvenile Division of Miami County Common Pleas Court.
(4) The Application shall be submitted to the Administrative Judge who shall indicate whether approval is granted on the application prior to the filing of the application with the Clerk of Courts.
8.07 CONTESTED DIVORCE ACTIONS
A divorce action shall be considered contested when the Defendant files an answer or counter-claim within 42 days following service of the divorce complaint.
8.08 UNCONTESTED DIVORCE ACTIONS
(A) An uncontested divorce action is defined as an action for divorce where no answer or other responsive pleading has been filed by the Defendant within forty-two (42) days of service of the complaint.
(B) Temporary issues in these actions shall be subject to the same rules as provided for in contested actions.
(C) In uncontested actions where the parties have entered into a written separation agreement there shall be submitted to the court a written statement by any party not represented by counsel that they waive advice of counsel.
(D) In all uncontested divorce actions where the Defendant is not represented by counsel the Clerk of Court shall forward a copy of all court orders, temporary or final, to the Defendant at their last known address and charge the costs to the case.
8.09 DESIGNATION OF MIAMI COUNTY LOCATIONS FOR THE POSTING OF NOTICE OF SERVICE OF PROCESS IN DIVORCE, ANNULMENT AND LEGAL SEPARATION ACTIONS
(A) The following locations are hereby designated as locations for posting of notices for service by publication in divorce, annulment and legal separation actions, pursuant to Ohio Rule of Civil Procedure 4.4.
(1) Miami County Safety Building 201 N. Main Street, Troy, OH 45373
(2) Department of Jobs and Family Services 2040 N. Co. Rd. 25-A, Troy, OH 45373
(3) Miami County Municipal Building (Piqua Office) 1105 Wayne Street, Piqua, OH 45356
8.10 PRETRIAL AND PREHEARING CONFERENCES
(A) A pretrial conference will be held in all cases involving divorce, legal separation, annulment and modification of parental rights and responsibilities. The attorneys and the parties shall be present for the pretrial conference unless other arrangements are made with the Court prior to the conference.
(B) The purpose of the pretrial conference includes:
(1) Narrow the legal issues;
(2) Admit to facts not in dispute;
(3) Exchange records;
(4) Discuss discovery and appointment of needed experts.
(C) Failure of the parties to appear, or failure of the attorneys to be prepared, or to appear, or to cooperate in good faith in conducting the pretrial conference may subject the attorney or party to sanctions pursuant to the Ohio Rules of Civil Procedure.
8.11 DISSOLUTION OF MARRIAGE ACTIONS
In all dissolution of marriage actions where only one party is represented by counsel, it must be affirmatively stated in writing by the unrepresented party and filed with the Clerk of Courts that said party waives representation by counsel and is proceeding without advice of counsel on the form approved by the Miami County Common Pleas Court designated as Form DR 4.
8.12 CHILD SUPPORT CALCULATION
Prior to any hearing on the merits, an uncontested divorce, dissolution or legal separation involving minor children, the movant shall submit to the court a completed child support computation worksheet and a proposed Form DR 16.
8.13 FINAL ORDERS
(A) General Decrees and agreed orders shall have titled paragraphs identifying the content of each paragraph, e.g., Spousal Support, Allocation of Parental Rights and Responsibilities, Health Insurance Coverage, Child Support, Parenting Time Schedule, Real Estate, Pension/Retirement, Debt Allocation, Personal Property, etc.
(B) Child support provisions, including the payment of health care expenses and provision of health insurance shall be established utilizing Form DR 16. The Decree of Divorce or Legal Separation shall include a provision protecting any arrearage due to public assistance reimbursement.
(C) Spousal support provisions shall provide the following: monthly amount; effective date; duration of the obligation; grounds for termination; e.g., death, remarriage; whether continuing jurisdiction is retained and under what conditions; and if arrearages are present, monthly payment on arrearage. Payments shall be made through the Office of Child Support, Ohio Child Support Payment Central (OCSPC) by certified check, or money order, plus the two percent (2%) processing charge until such time as said amounts are withheld by the withholding notice.
(D) In a case in which spousal support is the only support ordered, the parties may by agreement, with the Court’s permission, waive payment of the spousal support through the Ohio Support Payment Central (OCSPC). The parties must provide an independent record of payments, such as electronic transfers, automatic bank withdrawals or other method approved by the court.
(E) If the issue of a child’s parentage has been raised by either party or the court, then the decree shall make the appropriate finding of paternity or non-paternity. The decree should identify the child by name and date of birth and should indicate whether the child was born during or prior to the marriage and how parentage has been determined, e.g. genetic testing, agreement, acknowledgment, adoption, prior marriage. It should also direct the Ohio Department of Health to create a corrected birth record.
(F) The following language shall be included in all parenting time orders:
(1) Out-of-state relocation: Neither party shall relocate the children out of state without first obtaining a modified parenting time order and approval of the court. The parties may submit an agreed order modifying parenting time, with a provision for allocation of transportation expense, to the court. If the parents are unable to agree, the relocating parent shall, prior to relocation, (a) file a motion to modify the parenting time schedule, (b) set a hearing, and (c) obtain a modified parenting time order.
(2) Access to records: The non-residential parent shall have access to the same records, school activities and any day-care center which the children attend on the same basis that access is available to the residential parent, unless a restrictive order has been obtained from the court.
(3) Notice of change of address: Both parents shall give written notice to the other parent immediately upon any change of address or change of phone number, unless a restrictive order has been obtained. A copy of the notice, including the parties’ names and case number shall be filed with the Miami County Clerk of Courts.
(G) A party requesting restoration of a former name may submit within a reasonable time after the final hearing a separate proposed entry setting forth the party’s complete name before and after the requested change and current address.
(H) Decrees and agreed entries (except temporary or interim orders) shall designate which party shall pay court costs. In the event costs are to be shared, percentages are to be identified with each named party. If court costs are not addressed, the costs shall be paid by the Plaintiff in an original action and the movant in a post-decree action.
(I) Any decree or post-decree agreed order shall be denoted as a Final Appealable Order directly beneath signatures.
(J) The party submitting the decree or agreed entry shall file with the Clerk of Courts the original with four (4) copies when there are children or the original and three (3) copies when there are no children.
(K) In all actions, original or post decree, final orders shall carry a “prepared by:” signature line.
8.14 POST JUDGMENT RELIEF – PARENTING TIME, CHILD SUPPORT, MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIES, SPOUSAL SUPPORT, LUMP SUM JUDGMENT
(A) Any motion requesting modification of parental rights and responsibilities and/or modification of parenting time, child support, spousal support, and/or lump sum judgment shall contain a brief statement by the moving party setting forth the modification requested and the legal and factual basis supporting the relief and the following forms:
(1) Modification of parental rights and responsibilities and/or modification of parenting time – Affidavits 1,3, and 4;
(2) Child Support – Affidavits 1, 3, and 4;
(3) Spousal support – Affidavit 1.
(B) All motions will be set for hearing or pretrial conference at the time they are filed. The attorney shall submit a “Magistrate’s Order Setting Hearing” along with the motion to the Magistrate’s assignment commissioner for scheduling before filing the pleadings. Failure to comply will result in the motion not being set for hearing and dismissal of the motion.
(C) Where public assistance funds have been provided to the client, all motions for lump sum judgment shall contain a statement of the amount of public assistance funds due. The Child Support Enforcement Agency shall be joined as a party to the motion when public assistance funds are due unless it files a disclaimer as to any interest in these arrearages.
(D) A motion to modify a prior order should include a reference to the date and language of the prior order, the reasons for requesting a modification, and the change requested.
(E) An Agreed Entry to modify a prior order related to the allocation of parental rights and responsibilities may be submitted as a consent judgment entry signed by both parties. No motion is required to be filed.
(F) All motions for lump sum judgment or to show cause shall contain a reference to the date and language of former orders on which the motions are based and the facts constituting the violation.
(G) Failure to abide by these rules may result in the dismissal of the motion.
8.15 POST JUDGMENT RELIEF ACCOMPANIED BY CITATION FOR CONTEMPT
(A) Specifically state the basis for the contempt citation.
(B) Contain notice of hearing and before filing shall be submitted to the Magistrate’s assignment commissioner for scheduling.
(C) Notice of hearing shall be served with the motion and citation pursuant to the Civil Rules.
(D) Motions requesting sanctions provided by the Ohio Revised Code shall be served with a Notice and Summons to Appear.
8.16 MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIES (POST-DECREE CHANGE OF CUSTODY)
(A) When a post-decree modification of parental rights and responsibilities is sought, the party so moving shall comply with Loc. R. 8.14. The motion will be set for a Pre-Hearing Conference/Non-Contested Hearing before a Magistrate, at which time further hearings, referrals, investigations, assessments, etc. will be discussed and scheduled. If service on the other party is valid and there is a failure by that party or counsel to appear, an uncontested custody hearing shall take place.
(B) The Magistrate’s Order Setting Hearing for a modification of parental rights and responsibilities shall include the following language:
“This motion has been scheduled for a pretrial conference and uncontested hearing on ________________, at ___________ .m. before Magistrate _______________. The parties, with or without counsel, shall be present on the above date at the Third Floor, Safety Building, 201 West Main Street, Troy, Ohio.
Failure to appear may result in dismissal of the motion or an uncontested hearing on the motion.”
(A) In addition to Local Rule 4.03, all requested for continuances shall be by written motion on a form prescribed by the Court. The movant shall first attempt to secure consent of the opposing party; set forth in the motion whether consent was obtained or denied; the reason for the continuance and shall state the number of prior continuances. The party seeking the continuance shall immediately notify the opposing party or counsel of the Court’s ruling on the continuance. (See DR Form 19-20).
(B) If a continuance is requested due to a scheduling conflict a copy of the hearing notice shall be submitted with the motion for continuance. Also, the party seeking the continuance shall submit self-addressed stamped envelopes with the motion and hearing notice.
(C) The party seeking the continuance shall submit an entry granting/denying the motion and self-addressed stamped envelopes with the motion and entry.
8.18 SETTLED JUDGMENT ENTRIES
(A) In cases where contested actions have been settled and the attorney has been required to submit a judgment entry, the judgment entry shall be submitted to the Magistrate assigned to the case within twenty (20) days of the trial date, unless an extension of time is granted. Failure to comply with this rule shall result in the automatic dismissal of the motion by the Court.
(B) The Court may order either counsel to prepare the judgment entry setting forth the agreement of the parties. Unless otherwise designated, the movant is required to prepare the judgment entry. Said judgment entry shall be submitted to the opposing counsel prior to the submission to the Court. If counsel is unable to agree upon the judgment entry, the opposing counsel shall notify in writing, within five (5) days, the counsel who prepared the entry. Both counsels may thereafter submit an entry to the Court within ten (10) days of the written notice, and the Court shall direct which entry shall be filed. A judgment entry sent for signature which is not returned or rejected by opposing counsel within five (5) days, may be submitted to the Court without the signature of the opposing counsel or party, if the agreement was read on the record. All judgment entries not signed by both parties or legal counsel shall be accompanied by a copy of the transmittal letter indicating the date sent to the opposing counsel or party.
(C) If the agreement was not read on the record and a consent judgment entry cannot be agreed upon, Counsel should timely seek a new trial date.
8.19 DISMISSAL OF CASES
(A) The Magistrate shall review or cause to be reviewed quarterly all assigned cases. Cases which have been on the docket for six (6) months without any proceedings taken therein, except cases awaiting trial assignments, may be dismissed for want of prosecution, unless good cause is shown to the contrary.
(B) Upon failure to comply with any local rule, statute, order, civil rule, or failure to timely journalize, the Magistrates may, after notice to counsel or a party (if they are unrepresented), exercise any sanction provided by the Civil Rules including dismissal.
(C) If the movant fails to obtain service upon their complaint or motion within 90 days of filing, the Court may dismiss same for want of prosecution.
(D) Once a case and/or motion has been dismissed other than upon its merits, it will not be reinstated unless a motion is filed within a reasonable time stating the reason for the request, and serving the same upon opposing counsel, or if there is no opposing counsel, upon the other party or parties. Said case may immediately be scheduled for pre-trial and trial upon being reinstated.
(E) The unexcused failure of an attorney and/or party to appear for a hearing at the scheduled time, may result, within the discretion of the Court, in subjecting the offending person to any or all of the sanctions provided by Civil Rule 37, including dismissal.
(F) The Court may dismiss an action upon the showing that either party has failed to comply with all pre-trial orders.
8.20 ATTORNEY FEES
(A) Any request for attorney fees shall contain the following:
(1) The request shall be in writing;
(2) It shall be itemized as to services rendered;
(3) It shall contain the number of hours and the hourly rate for each service rendered.
(4) Failure to comply with the foregoing may result in the denial of the request of fees.
(B) The Court shall retain the right to award attorney fees to opposing counsel, without the filing of a written motion, upon a finding that the motion was spurious; that there was undue delay in proceeding with the case; or that there was an unexcused absence.
8.21 GUARDIANS AD LITEM AND REPORTS
(A) Reports of the guardian ad litem shall be submitted to the magistrate’s office and shall be not filed with the clerk.
(1) Upon completion of the report, the guardian ad litem shall deliver copies of the report by email to counsel and to the court. The guardian shall retain the original, signed report for use at trial.
(2) Except as provided in this rule, or unless otherwise ordered by the court, the electronic copy of the guardian report provided to counsel shall not be copied, photographed or reproduced by any means and shall not be forwarded to or shared with any other person. Counsel may print ONE copy of the report for counsel’s use. This copy may also be used for the client only to review in counsel’s office. The electronic and paper copy remain the property of the court. At the earlier of the conclusion of counsel’s representation or the conclusion of the pending matter, the electronic and paper copy, if any, of the guardian ad litem report must be deleted/destroyed by counsel. Counsel are responsible to take steps to ensure compliance with this rule. Violation of this rule may result in a finding of contempt, or subject the client and/or counsel to financial or other appropriate sanctions.
(B) The Administrative Judge is designated as the contact person to accept and consider written comments and complaints regarding the performance of a guardian ad litem. The Administrative Judge may designate a court staff person to complete any investigations required and maintain the appropriate records for approved guardians ad litem consistent with the court’s local rules and Rule 48 of the Rules of Superintendence. The designated person shall maintain files for all applicants and for individual’s approved for appointment as guardians ad litem with the court. The files shall contain all records and information required by Rule 48 of the Rules of Superintendence, and by local rules. for the selection and service of guardians ad litem including a certificate or other satisfactory proof of compliance with training requirements.
(C) Prior to the guardian ad litem being placed on the approved guardian ad litem list, he or she shall submit to a civil background check, and criminal background check through the Miami County Sheriff’s Department.
(D) The procedure for appointing/removing a Guardian Ad Litem shall be as follows:
(1) If a motion for Guardian Ad Litem is filed, it will be set for hearing before a Magistrate.
(2) The Court will appoint a Guardian Ad Litem from the court’s approved guardian ad litem list. The appointment will be on a rotating basis unless the parties agree on a guardian.
(3) For good cause shown, guardian ad litem may be removed from a specific case. To remove the guardian ad litem, the party must file a motion with the court which will be heard by a magistrate.
(4) The court may remove a guardian ad litem from the list of approved guardians ad litem for failure to abide by this rule or other just cause as deemed appropriate by the Court. The final decision will be made by the Administrative Judge after consultation with the other judge.
(5) Whenever feasible, the same guardian ad litem shall be reappointed for a specific child in any subsequent proceeding relating to the best interest of the child.
(E) Responsibilities of a Guardian Ad Litem:
In addition to any duties imposed by the appointing court, the guardian ad litem shall comply with all responsibilities outlined in Superintendence Rule 48.
(F) Payment of guardian fees
(1) At the conclusion of the pending matter, or at such other time as directed by the court, the guardian ad litem shall file a motion for the payment of fees. The guardian shall submit a proposed order for the payment of fees. The guardian shall attempt to secure the consent of the parties or their counsel to the proposed order. In the absence of approval, the guardian shall submit an order for a hearing on the motion for payment of fees.
(2) In the event that the final bill is not paid as ordered, the guardian may file a motion for contempt. The filing fee for this motion will be waived.
8.22 MEDIATION-DOMESTIC RELATIONS ACTIONS: REPEALED (FEBRUARY 21, 2020)
8.23 TIME LIMITS
(A) All actions to establish a support requirement or to modify a previously issued support order are to be completed with the following time limits.
(1) Seventy-five percent of all of the actions shall be completed within six (6) months after the date of the initial filing;
(2) Ninety percent all of the actions shall be completed within twelve (12) months after the date of the initial filing.
(3) Loc. R. 8 is adopted to ensure compliance with the above stated time fame. The above time limits are subject to and superseded by any time limits set forth in the Ohio Revised Code and Ohio Rules of Superintendence.