A.R.C. v. D.J.S. , 2020 Ohio 5403 ( 2020 )

[Cite as A.R.C. v. D.J.S., 2020-Ohio-5403.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[A.R.C.], :
Plaintiff-Appellee, :
No. 19AP-807
v. : (C.P.C. No. 17DR-2908)
[D.J.S.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 24, 2020
On brief: [D.J.S.], pro se. Argued: [D.J.S.].
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
NELSON, J.
{¶ 1} Father D.J.S. appeals from the judgment entry of the Franklin County Court
of Common Pleas, Division of Domestic Relations, Juvenile Branch, that adopted a
magistrate's decision denying his motion to modify the court's visitation order. We affirm.
{¶ 2} Mother A.R.C. filed a complaint for divorce on August 3, 2017. The trial court
entered a decree of divorce on November 28, 2017, designating A.R.C. as "the residential
parent and sole legal custodian" of the parties' minor son. Decree at 4. Regarding parenting
time, the decree stated: "Father shall have supervised parenting time with the minor child
as the parties shall agree, in writing, but if [the] parties cannot agree to supervised
parenting time, then Father shall not have any Court ordered parenting time until
requested upon proper Motion filed with this Court." Id.{¶ 3} D.J.S. filed a motion to modify parenting time on February 20, 2018, stating
that he had missed the hearing due to a hospitalization and that he was "requesting
No. 19AP-807 2
unsupervised visitation, every other weekend from Friday at 7:00 p.m. until Sunday
afternoon. I am flexible and it doesn't have to be written in stone. I would also like to have
parenting time on holidays for half of the day. I think that it is fair and reasonable that we
split the holidays."
{¶ 4} On May 10, 2018, the magistrate addressed the motion with the following
order: "Visitation, supervised, through Buckeye Boys Ranch, drug screening after series of
supervised visits before any change in visitation. The first month it will be one visit every
two weeks for two hours. Then if goes well, add every week for two hours."
{¶ 5} D.J.S. filed a motion for contempt on January 11, 2019, alleging the following
"interference with parenting time" as outlined in the May 10, 2018 order: "[A.R.C.] [h]asn't
shown up for visitation 3 times in [the] last six months."
{¶ 6} On May 14, 2019, the magistrate held a hearing on D.J.S.'s motion and on a
motion A.R.C. had filed alleging that D.J.S. was in contempt of a child support order. The
magistrate's decision stated that D.J.S. "provided testimony that he was unsure of specific
days of supervised visitation missed" as alleged in the motion. A.R.C. testified that she did
not bring the child due to illness, as was the policy of the visitation center, "and could
provide a doctor excuse for any missed visits." July 1, 2019 Magistrate's Decision at 5. The
magistrate concluded that D.J.S. had "failed to establish, by clear and convincing evidence,
that [A.R.C.] is in contempt of the court orders regarding parenting time orders," and
denied the motion. Id. at 5-6.
{¶ 7} In a separate decision entered the same day, the magistrate returned to
D.J.S.'s original February 20, 2018 motion to modify visitation. The magistrate noted that
the parties' child had been "born premature and addicted," and that D.J.S. had "voluntarily
checked himself" into a psychiatric facility when his son was released from the hospital.
July 1, 2019 Magistrate's Decision at 3-4. D.J.S. "has had very little contact" with the child
since his birth and was not "involved in the Neglect Abuse Dependency case filed shortly"
thereafter. Id. at 4. D.J.S. "never completed his part of the case plan" that FCCS
implemented requiring him "to take parenting classes and obtain domestic violence
counseling." Id. The magistrate noted D.J.S.'s "history of mental health issues including
polysubstance abuse"; although D.J.S. "testified that he had been clean for two years," he
"then testified that he currently had marijuana in his system" and had had alcohol five or
No. 19AP-807 3
six weeks earlier. Id. at 5. D.J.S. had two convictions for domestic violence against A.R.C.,
both before their son's birth. Id. D.J.S. also was convicted for violating the civil protection
order imposed after the domestic violence convictions. Id. He had convictions, too,
resulting in prison or jail time for DUI, felonious assault, and improper discharge of a
firearm. Id.
{¶ 8} The magistrate noted that D.J.S. was "not employed," but why was "unclear."
Id. at 6. "He testified that mainly he is so busy with all his appointments and long bus trips
to and from appointments [that] he doesn't have time to work or be a reliable employee. He
has daily counseling sessions, including chemical dependency, AA and NA. * * * He testified
that he does anger management weekly and attends a program for ADD issues." Id. The
magistrate also heard testimony from the guardian ad litem, who recommended that D.J.S.
"continue to have supervised parenting time by an independent agency." Id.
{¶ 9} The magistrate accepted this recommendation when granting D.J.S.'s
original February 20, 2018 motion to modify visitation and modifying the original visitation
order as follows: "[D.J.S.] shall have two hours of visitation every week which shall be
supervised by an independent agency. * * * [D.J.S.]'s parenting time shall remain
supervised until he completes the following: 1. Parenting classes * * *. 2. Completion of
D/V/anger management classes * * *. 3. Six consecutive months of clean 10 panel drug
screens scheduled randomly * * *. 4. Upon completion of six consecutive months of clean
bi-monthly ten panel drug screens and no missed screens, defendant shall not be required
to take additional drug screens as a condition of his ongoing supervised parenting time.
After successful completion of the four above requirements and consistent visitation by
[D.J.S.] during the period of supervised visitation, the parties may agree to expand [his]
parenting time and remove the supervision requirement" upon approval of the court. Id. at
8-9. In addition, the trial court ordered "a temporary deviation in the monthly child support
obligation" so that D.J.S. could have "sufficient funds to comply with the cost of visitation
supervision" and drug screening. Id. at 9.
{¶ 10} D.J.S. filed another motion for change of visitation on October 16, 2019. In
support of the motion, he stated that he had graduated from a parenting program, and he
requested a change that might grant him visitation "weekends and holidays." Oct. 15, 2019
Motion at 2.
No. 19AP-807 4
{¶ 11} In a decision adopted by the trial court and entered on November 21, 2019,
the magistrate noted that A.R.C. and D.J.S. had appeared at a hearing on the motion, and
that "[a]n audio recording was made of the proceedings." After recounting the existing
terms of the visitation order, the magistrate stated: "[D.J.S.] indicated that he did not
understand the prior orders of the court and had not completed or brought proof of
compliance with the provisions set forth in the order. Until [D.J.S.] demonstrates
compliance with these provisions and can demonstrate that he has addressed the issues
identified in the prior decision and entry, inclusive of mental health concerns, filing for
unsupervised visitation with this very young child is premature." Nov. 21, 2019
Magistrate's Decision at 3.
{¶ 12} In his sole assignment of error appealing this decision, D.J.S. asserts that
"[t]he trial court erred in ordering supervised visitation." Appellant's Brief at 2. In support,
he argues that: he has "done supervised visits with outstanding reviews"; "[t]here are no
places to accommodate the 2nd order which has already been fulfilled"; and he has
"[c]ompleted other concerns of the court thr[ough] affordable possibilities already." He
states: "As I win motions I receive less supervised time even. All I want is unsupervised
visits with my son," adding that he has had "[n]o opportunity to show completion of court
ordered programs." Id. D.J.S. also argues that "[a]ll" of the contempt motions he filed
"were overlooked and not addressed" by the trial court. Id.
{¶ 13} The record lacks a transcript of the November 19, 2019 hearing, and we can
review the trial court's ruling only for plain error. First, D.J.S. did not timely object in the
trial court to the magistrate's decision. "Except for a claim of plain error, a party shall not
assign as error on appeal the court's adoption of any factual finding or legal conclusion,
whether or not specifically designated as a finding of fact or conclusion of law under Juv.R.
40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by
Juv.R. 40(D)(3)(b)." Juv.R. 40(D)(3)(b)(iv); compare Civ.R. 53(D)(3)(b)(iv) (same
import); Longmire v. Danaci, 10th Dist. No. 19AP-770, 2020-Ohio-3704, ¶ 22 (waiver of
right to challenge findings). Second, and again apart from plain error, "[a]bsent
a transcript, this court must presume the regularity of the proceedings below and affirm the
trial court's decision." Lee v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 06AP-625,
2006-Ohio-6658, ¶ 10. See also Studley v. Biehl, 10th Dist. No. 18AP-11, 2018-Ohio-2274,
No. 19AP-807 5
¶ 14 (reviewing appeal for plain error in the absence of a transcript; "we cannot presume
evidence other than what appears in the record, nor can we presume evidence not offered
or facts not proved. Without a transcript, we must presume the regularity of the trial court's
proceedings and affirm its judgment on appellate review").
{¶ 14} Under Appellate Rule 9(B)(1), "it is the obligation of the appellant to ensure
that the proceedings the appellant considers necessary for inclusion in the record, however
those proceedings were recorded, are transcribed in a form that meets the specifications of
App. R. 9(B)(6)" pertaining to transcripts. "The transcription of any necessary proceedings
is, therefore, required, and an appellant may not rely solely on an audio-recording for
purposes of his or her appeal." State v. Tinley, 9th Dist. No. 17CA0062-M, 2018-Ohio-
2239, ¶ 6 (holding that certain assignments of error could not be resolved "on their merits
in the absence of a trial transcript. The audio-recording contained in the record does not
comport with App.R. 9 and is not a substitute for a proper transcript"). See also In re
Adoption of Z.A.-O.J., 5th Dist. No. 16-CA-05, 2016-Ohio-3159, ¶ 15 ("Though the file
contained an audio recording of the adoption hearing, it is clear from the Staff Notes to
App.R. 9 that while a trial court may choose to record the proceedings through the use of
an audio-recording device, 'regardless of the method of recording the proceedings, a
transcript is required for the record on appeal' "). Furthermore, the record does not contain
any exhibits entered into evidence at the hearing to support D.J.S.'s assertions that he
fulfilled the conditions of the visitation order.
{¶ 15} We also find no plain error in the trial court's denial of D.J.S.'s October 16,
2019 motion for change of visitation. By his own admission, D.J.S. has only partly complied
with the conditions for modification set forth in the trial court's July 1, 2019 order that are
a prerequisite to unsupervised visitation. No appeal was taken from that order arguing that
the trial court erred in placing those conditions or in properly applying the statutory factors
for modification of an existing visitation order. See R.C. 3109.051(D)(listing factors); see
also Braatz v. Braatz, 85 Ohio St.3d 40, 44 (1999) (holding that "modification of visitation
rights is governed by R.C. 3109.051" and that "the trial court shall consider the fifteen
factors enumerated therein, and in its sound discretion determine visitation that is in the
best interest of the child").
No. 19AP-807 6
{¶ 16} Finally, we note that D.J.S.'s assertion that the trial court failed to address his
motions to modify visitation is not supported by the record. His February 20, 2018 motion
was addressed by the trial court's May 10, 2018 order and ruled on in the July 1, 2019
magistrate's decision. The January 11, 2019 motion for contempt was denied on July 1,
2019. His October 16, 2019 motion was denied on November 21, 2019 and is the subject of
this appeal. No unresolved motion to modify visitation appears in the record as of the date
on which D.J.S. filed his notice of appeal.
{¶ 17} The assignment of error is overruled and the judgment of the trial court is
affirmed.
Judgment affirmed.
KLATT and BEATTY BLUNT, JJ., concur.
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