Zupan v. Zupan , 2013 Ohio 2629 ( 2013 )

[Cite as Zupan v. Zupan, 2013-Ohio-2629.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA A. ZUPAN, KNA PICIACCHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
JOSEPH T. ZUPAN : Case No. 13-COA-006
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
10-DIV-177
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 17, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CATHERINE D. GOLDMAN BRIAN J. HALLIGAN
Weldon, Huston & Keyser, L.L.P VALERIE A. LANG
76 N. Mulberry Street Halligan & Lang Co., LPA
Mansfield, OH 44902 1149 East Main Street
P.O. Box 455
Ashland, OH 44805
Ashland County, Case No.13-COA-006 2
Baldwin, J.
{¶1} Appellant Joseph T. Zupan appeals a judgment of the Ashland County
Common Pleas Court, Domestic Relations Division, overruling his motion to find
appellee Lisa. A. Piciacchio in contempt of court.
STATEMENT OF FACTS AND CASE
{¶2} The parties entered into a separation agreement, which was adopted into
a judgment entry of divorce filed on February 23, 2012. Appellant filed a motion seeking
to hold appellee in contempt of court on July 27, 2012. His complaint alleged that
appellee was in contempt for moving and failing to notify appellant of her address, and
for failing to properly maintain the marital home during the time she occupied the home
from February 23, 2012, until June 20, 2012.
{¶3} The case proceeded to an evidentiary hearing before a magistrate. The
magistrate found that appellee was not in contempt of court. The magistrate found that
the divorce judgment did not require appellee to notify appellant of her address, and
further that appellant knew where she lived. The magistrate found that appellee was
not in contempt of court for failing to maintain the home prior to vacating the premises.
The magistrate found that appellant did not inspect the property prior the time of the
divorce and no appraisal or evidence concerning the condition of the home was
presented to establish if there was a deterioration of the home from February, 2012,
through June, 2012, for which appellee would be responsible. The magistrate found
that appellant chose to make repairs to maximize his profits on sale of the home, and
that appellant testified that the home was in a liveable condition when appellee moved
Ashland County, Case No.13-COA-006 3
out of the home. The magistrate further found that appellant failed to mitigate his
damages.
{¶4} Appellant filed objections to the magistrate’s report. However, appellant
did not file a transcript of the magistrate’s hearing. The court was therefore limited to
reviewing the magistrate’s findings to determine if they were sufficient to support the
conclusions of law. The court adopted the magistrate’s decision as the order of the
court.
{¶5} Appellant assigns three errors on appeal:
{¶6} I. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S
DECISION WHERE APPELLEE INDISPUTABLY FAILED TO SERVE APPELLANT
WITH A NOTICE OF INTENT TO RELOCATE AND FURNISH APPELLANT WITH HER
CURRENT ADDRESS.
{¶7} II. THE TRIAL COURT ERRED IN CONDLUCING THAT SERVICE
OF PROCESS RENDERS AS MOOT SANCTIONS FOR A RESIDENTIAL PARENT’S
FAILURE TO FURNISH AN ADDRESS.
{¶8} III. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S
DECISION BECAUSE APPELLANT DID NOT AGREE TO ACCEPT THE MARITAL
REAL ESTATE IN AN AS-IS CONDITION AND HAD NO DUTY TO MITIGATE.
I.
{¶9} Appellant argues in his first assignment of error that the court erred in
adopting the magistrate’s decision because appellee “indisputably” failed to furnish
appellant with her current address. Appellant argues that while the decree of divorce
Ashland County, Case No.13-COA-006 4
may not expressly require appellee to furnish him with her address, a copy of Loc. R. 20
was attached to the decree, and the rule requires notification of a change of address.
{¶10} Appellant did not file a transcript of the proceedings with the trial court for
ruling on his objections as required by Civ. R. 53(D)(3)(b)(iii). Appellant also has not filed
a transcript with this Court. When the party objecting to a magistrate's report fails to
provide a transcript, our review of the trial court's findings is limited to whether the trial
court abused its discretion in adopting the magistrate's report. State ex rel. Duncan v.
Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995). In order to
find an abuse of discretion, we must determine whether the trial court acted
unreasonably, arbitrarily or unconscionably and there was not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). When
the objecting party fails to provide a transcript of the original hearing before the
magistrate for the trial court's review, the magistrate's findings of fact are considered
established and may not be attacked on appeal. Doane v. Doane, 5th Dist. No. 00CA21,
2001 WL 474267 (May 2, 2001). Accordingly, we review this matter only to analyze
whether the trial court abused its discretion in reaching specific legal conclusions based
upon the established facts. Sochor v. Smith, 5th Dist. No. 00CA00001 (June 28, 2000).
{¶11} The court found that pursuant to the terms of the decree, Local Rule 20
was attached for purposes of clarifying a parenting schedule should the parties not be in
agreement, not for the purpose of ordering appellee to furnish appellant with an address.
The court further noted that appellant had appellee’s address, and that he had sent her a
text message to request her address. We find no abuse of discretion in the court’s
decision that appellee was not in contempt of court.
Ashland County, Case No.13-COA-006 5
{¶12} The first assignment of error is overruled.
II.
{¶13} In his second assignment of error, appellant argues that the court erred in
finding that his knowledge of appellee’s address renders moot the issue of contempt for
appellee’s failure to provide an address. As noted in the first assignment of error, the
court found that the decree did not require appellee to furnish appellant with her address,
and Local Rule 20 was incorporated into the decree for purposes of clarifying the
parenting schedule, not for purposes of requiring appellee to notify appellant of her
address. In the first assignment of error, we found no abuse of discretion in this finding.
Therefore, the court’s finding that the issue is moot because appellant obtained
appellee’s address is unnecessary to support the finding that she was not in contempt,
and we need not address this issue.
{¶14} The second assignment of error is overruled.
III.
{¶15} Appellant argues that the court erred in finding that he was required to
accept the property in an “as is” condition and that he was required to mitigate damages.
{¶16} The court also found that there was no evidence that there was a
diminution in the value of the property from February, 2012, through June, 2012.
Appellant does not challenge this finding, and in the absence of a transcript appellant
cannot demonstrate that this finding was not supported by the evidence. Regardless of
whether appellant was required to mitigate damages or accept the property “as is,” the
court found that the evidence did not establish that appellee failed to comply with the
provisions of the decree concerning maintaining the home. As this is an independent
Ashland County, Case No.13-COA-006 6
basis for the court’s finding that she was no in contempt on this issue, we need not
address the issue of whether appellant was required to accept the property in an “as is”
condition or whether he was required to mitigate damages.
{¶17} The third assignment of error is overruled.
{¶18} The judgment of the Ashland County Common Pleas Court, Domestic
Relations Division, is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as Zupan v. Zupan, 2013-Ohio-2629.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA A. ZUPAN, KNA PICIACCHIO :
:
Plaintiff –Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOSEPH T. ZUPAN :
:
Defendant - Appellant : CASE NO. 13-COA-006
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Ashland County, Ohio is affirmed. Costs
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE