COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68055 HENRY LEE WILLIAMS : : Plaintiff-appellant : : vs. : DISSENTING OPINION : CHEYENNE WILLIAMS : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : _______________________ PRYATEL, J., DISSENTING: With due respect, I dissent. It is undisputed that the original trial court (J. Fisher, Domestic Relations) did not contain all of the recommended order listed on the July 17, 1991 referee's report in that his journal- ized order of divorce decree (Feb. 26, 1992) did not approve the recommended division of the parties' property; hence, his ruling was not a final order. - 2 - Upon Judge Fisher's retirement, this case was assigned to Judge McMonagle, who sua sponte vacated Judge Fisher's February 26, 1992 journalized entry pursuant to Civ.R. 60(A) and substituted a nunc pro tunc judgment which incorporated the division of the parties' property as listed by the referee (but not approved by Judge Fisher). From that nunc pro tunc entry (now a final order), appellant asserts error in that Judge McMonagle "erred, to the prejudice of the appellant pursuant to the Ohio Code of Civil Procedure 60(A) to vacate the February 26, 1992 (J. Fisher) entry and enter a new court order, nunc pro tunc." Within this sole error, appellant contends that Judge McMonagle was without authority to sua sponte vacate the February 26, 1992 (J. Fisher) judgment because her entry did not confine her correction to a clerical error as limited by Civ.R. 60(A), which, in pertinent part, provides: A trial court *** may correct apparent and inadvertent clerical mistakes *** but is not allowed to make substantive changes in judg- ment. *** "Clerical mistake" *** merely describes the type of error identified with mistakes in transcription, alteration or omission of any papers or documents which are traditionally or customarily handled or controlled by clerks ***. It is a type of mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney. *** - 3 - Dentsply Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116, quoting In re Merry Queen Transfer Corp. (E.D.N.Y. 1967), 266 F.Supp. 605, 607. There is no dispute that the division of marital property was a legal decision to be made by the initial trial court and not a matter left to the sole discretion of the referee. Even though the referee recommended a property division, Judge Fisher was not obliged to accept the recommendation. Nor did he. See, Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102 (a trial court, rather than a referee, possesses the primary duty to act as a judicial officer). Civ.R.53(E)(5) specifies that the referee's report is only effective and binding when approved and entered as a matter of record by the trial court. See, DeSantis v. Soller (1990), 30 Ohio App.3d 226. Finally, it is well settled that a trial court speaks only through its journal. Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 83; Marous v. Ohio Bell Tel. Co. (1992), 80 Ohio App.3d 306, 312. Judge Fisher adopted the recommendation of his referee except for the division of property. Thus, he acted on her recommenda- tions. The fact that he did not embrace her suggested division of property does not convert a conjecture into a conclusion that he did not consider it. In its current opinion, where the majority overrules the assignment of error, the majority concludes: - 4 - In the present case, the February 1992 judg- ment entry is deficient in that it contained no order regarding a division of the parties' marital and/or separate property. The referee's recommendation was not effective and binding under Civ.R., 53(E)(5) because it was not approved and entered as a matter of record by the court. The original trial court, Judge Fisher, did not determine a judicial issue which was directly before him. Therefore, the February 1992 judgment was never a final order under R.C. 2505.02. As a result, the second trial court, Judge McMonagle, was fully permitted to issue the September 1994 judgment without satisfying Civ.R. 60(A) requirements. The September 1994 judgment was the first final, appealable order issued by the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, with regard to the parties' divorce. Since appellant fails to challenge the propriety of the division of property, we are compelled to affirm the trial court's September 1994 judg- ment. (Citation omitted.) We are given no authority, by way of court rule or court decision in or outside of Ohio, to support that conclusion on these facts. Thus, because the Civ.R. 60(A) could not be satisfied, it need not be satisfied! Appellant is prejudiced by the ruling of Judge McMonagle, who neither heard evidence nor extended counsel the opportunity to adduce evidence. The majority selected its own assignment of error, the propriety of the division of property, with no chance for either side to brief it. 1 Incomplete yes; but deficient, no. 2 Actually, it was approved as entered by Judge Fisher without adoption of the recommended division of property; other- wise, Judge McMonagle would have no entry to vacate. - 5 - The division of the property (whether wise or unwise) is not at issue here since Judge McMonagle lacked authority via nunc pro tunc to issue a judgment entry that effected a substantive change. In short, the propriety of her entry is what is challenged in that she issued nunc pro tunc relief admittedly containing a substantive change which renders such relief inapplicable. If the majority contends that the equity of her entry should have been challenged, that issue is premature until the legality of the use of nunc pro tunc is established. Furthermore, if appellant (as suggested by the majority) had raised the question of the wisdom of the nunc pro tunc division of property, appellant, to his detriment, would have waived his right to challenge the legality of the nunc pro tunc procedure. I reiterate my initial decision (circulated August 9, 1995) to .