Fritz v. Fritz , 2013 Ohio 2536 ( 2013 )

[Cite as Fritz v. Fritz, 2013-Ohio-2536.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98977
VERONICA A. FRITZ
PLAINTIFF-APPELLEE
vs.
TIMOTHY WERNER FRITZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case Nos. CP D-335502 and D-337114
BEFORE: Kilbane, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 20, 2013
ATTORNEY FOR APPELLANT
Richard A. Goulder
15887 Snow Road
Suite 301
Brook Park, Ohio 44142
ATTORNEY FOR APPELLEE
Susan P. Stauffer
1223 West Sixth Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Timothy Fritz (“Timothy”), appeals the trial court’s
judgment adopting the magistrate’s decision and granting a divorce to plaintiff-appellee,
Veronica Fritz (“Veronica”). For the following reasons, we affirm.
{¶2} In February 2011, Veronica filed for divorce from Timothy.1 They married
in 1995, and two children were born as issue of the marriage. At the time of the
complaint, one child was 16 years old and the other child was 6 years old. The matter
proceeded before a magistrate in May 2012. The magistrate issued a decision in June
2012, which was amended in July 2012. Timothy filed timely objections to the
magistrate’s decision, claiming the magistrate’s award of spousal support is not supported
by the evidence, the visitation provisions are unreasonable, the distribution of marital
property is inequitable, and the support calculations are unreasonable. However,
Timothy did not file a trial transcript or an affidavit with his objections as required by
Civ.R. 53(D)(3)(b)(iii).2 The trial court overruled Timothy’s objections and adopted the
magistrate’s decision in August 2012, which was corrected by a nunc pro tunc order in
September 2012.
1Timothy filed for divorce in June 2011; both cases were consolidated by the
trial court.
2Civ.R. 53(D)(3)(b)(iii) provides that any objection to a magistrate’s factual
finding “shall be supported by a transcript of all the evidence submitted to the
magistrate relevant to that finding or an affidavit of that evidence if a transcript is
not available.”
{¶3} Timothy now appeals, raising the following five assignments of error for
review.
Assignment of Error One
The trial court erred in failing to consider [Veronica’s] voluntary
unemployment and/or underemployment prior to awarding spousal support.
Assignment of Error Two
The trial court erred by not reserving jurisdiction to modify spousal support.
Assignment of Error Three
The trial court erred by failing to expand [Timothy’s] visitation with the
parties’ minor child.
Assignment of Error Four
The trial court erred by awarding all motor vehicles to [Veronica].
Assignment of Error Five
The trial court erred in ordering [Timothy] to pay the sum of $5,372.64
annually in child support.
{¶4} As an initial matter, we must note that Timothy failed to file a transcript or
affidavit by which the trial court could review the magistrate’s findings of fact.
Timothy’s objections were filed in July 2012 and were ruled on by the trial court in
September 2012. Timothy did not file the transcript with the trial court until October
2012. As a result, the trial court was unable to conduct a meaningful and independent
review of the allegations contained in Timothy’s objections for lack of a transcript. We
must, therefore, presume regularity. Bailey v. Bailey, 8th Dist. No. 98173,
2012-Ohio-5073, ¶ 8. When an objecting party fails to timely file a transcript or
affidavit, a trial court must accept the magistrate’s findings of fact and limit its review to
the magistrate’s legal conclusions. Id., citing Snider v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 11AP-965, 2012-Ohio-1665.
{¶5} On appeal, our review is limited to determining whether the trial court
abused its discretion in accepting and adopting the magistrate’s decision. Dancy v.
Dancy, 8th Dist. No. 82580, 2004-Ohio-470, ¶ 10. “The term ‘abuse of discretion’
connotes more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.’” (Citations omitted.) Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62
Ohio St. 2d 151, 404 N.E.2d 144 (1980).
In order to have an abuse of that choice, the result must be so palpably and
grossly violative of fact or logic that it evidences not the exercise of will but
the perversity of will, not the exercise of judgment but the defiance of
judgment, not the exercise of reason but instead passion or bias.
Dancy at ¶ 11, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St. 3d 254, 1996-Ohio-159,
662 N.E.2d 1.
{¶6} We find no abuse of discretion in the trial court’s actions. The magistrate’s
decision extensively analyzed the proper legal standards used to determine spousal and
child support, child visitation, and the distribution of marital property. In our review of
the magistrate’s decision, we must accept the factual findings and find that the
appropriate rules of law were applied to those findings. The trial court had sufficient
basis upon which to analyze the issues and to apply appropriate rules of law in reaching
its decision to adopt the magistrate’s decision and to issue an order for divorce in
accordance with those recommendations. See Dancy at ¶ 12.
{¶7} Therefore, the first, second, third, fourth, and fifth assignments of error are
overruled.
{¶8} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR