Krofft v. Muskingum Cty. Job & Family Servs. ( 2011 )

[Cite as Krofft v. Muskingum Cty. Job & Family Servs., 2011-Ohio-3396.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TERRY LEE KROFFT, JR. JUDGES:
Hon. John W. Wise, P. J.
Appellant Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2011-0011
STATE OF OHIO, MUSKINGUM
COUNTY JOB & FAMILY SERVICES,
CHILD SUPPORT DIVISION
Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. DG2010-1078
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 21, 2011
APPEARANCES:
For Appellant For Appellee
TERRY LEE KROFFT, JR., Pro Se GREGORY A. STARCHER
Pro Se 1830 East Pike
7265 Dresden Adamsville Road Post Office Box 9
Adamsville, Ohio 43802-9701 Zanesville, Ohio 43702-0009
Muskingum County, Case No. CT2011-0011 2
Wise, P. J.
{¶1} Appellant Terry Lee Krofft, Jr. appeals the March 10, 2011, Magistrate’s
Decision regarding child support entered in the Muskingum County Court of Common
Pleas.
{¶2} Appellee is the State of Ohio, Muskingum County Job & Family Services,
Child Support Division.
{¶3} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶4} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11.1. It shall be sufficient compliance with App. R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶5} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE CASE AND FACTS
{¶6} On July 23, 2005, Appellant-father Terry Lee Krofft, Jr. and mother
Marlayna Krofft were married. Prior to their marriage, the couple had a child, Terry
Krofft, III. born December 23, 2003. Paternity was established on April 6, 2004, through
genetic testing which indicated a 99.99% probability of paternity.
{¶7} The parties separated in November, 2010, and are living separate and
apart, but neither has filed an action to terminate the marriage. This is not the first time
the parties have separated. During a previous separation, the mother obtained cash
Muskingum County, Case No. CT2011-0011 3
assistance through Ohio Works First (OWF) and a medical card from the Human
Services Division of Muskingum County Job & Family Services. At that time, mother
assigned her right to child support and cash medical support to the State of Ohio.
{¶8} On March 23, 2010, a Complaint to Establish Child Support and Health
Care Insurance was filed in the Muskingum County Domestic Relations Court.
{¶9} On April 27, 2010, an oral hearing was held in this matter.
{¶10} At said hearing, the trial court found that Appellant had suffered a back
injury, had applied for Social Security Disability, that his home was in foreclosure, that
he had two other children, and that he had no medical insurance coverage.
{¶11} By a Magistrate’s Decision dated March 23, 2010, the Magistrate ordered
Appellant to pay ten dollars ($10.00) per month for current child support when health
care insurance was being provided and ten dollars ($10.00) per month for current child
support plus zero dollars ($0.00) per month for cash medical support when private
health care insurance was not being provided for the child.
{¶12} On May 4, 2010, the Magistrate’s Decision was adopted by the trial court
and was filed. No objections were filed to the Magistrate’s Decision.
{¶13} The above order was terminated effective September 23, 2010, when the
Appellant and mother reconciled and resumed living together.
{¶14} In September, 2010, Appellant began receiving a Social Security Disability
benefit in the amount of $1,038.00 per month. As of the date of this appeal, Appellant
last received benefits in January, 2011.
{¶15} In November, 2010, the couple separated again.
Muskingum County, Case No. CT2011-0011 4
{¶16} On December 21, 2010, another Complaint was filed to determine child
support, health care insurance coverage an cash medical support due to the mother
receiving OWF and health care coverage through Medicaid.
{¶17} On February 15, 2011, this matter came on for hearing before a
magistrate.
{¶18} On March 10, 2011, the magistrate filed his decision, wherein he found
that Marlayna Krofft was unemployed and had two other children who each receive a
small monthly income from their deceased father’s social security benefits. He further
found, based on Appellant’s testimony, that Appellant earned approximately $47,000.00
in 2010 working as a truck driver and that he had health insurance available to him
through his employer. The Magistrate also found that Appellant had two other children
under another child support order for which he gave Appellant a $4,536.00 credit on the
guideline worksheet.
{¶19} No objections were filed to the Magistrate’s Decision.
{¶20} Plaintiff-Appellant now appeals. Appellant, however, fails to raise any
assignments of error, and, instead stating
{¶21} “I Feel That There Was Some Error,s [sic] Made In My Case so I Am
Asking That This court Look Over the MAGISTRATE,S [sic] DECISION.”
{¶22} Appellant had also failed to file a transcript to support any argument he
makes in his one page “brief”.
{¶23} Appellant has further failed to comply with multiple parts of Appellate Rule
16. App. R. 16 provides, in pertinent part:
{¶24} “(A) Brief of the appellant
Muskingum County, Case No. CT2011-0011 5
{¶25} “The appellant shall include in its brief, under the headings and in the
order indicated, all of the following:
{¶26} “(1) A table of contents, with page references.
{¶27} “(2) A table of cases alphabetically arranged, statutes, and other
authorities cited, with references to the pages of the brief where cited.
{¶28} “(3) A statement of the assignments of error presented for review, with
reference to the place in the record where each error is reflected.
{¶29} “(4) A statement of the issues presented for review, with references to the
assignments of error to which each issue relates.
{¶30} “(5) A statement of the case briefly describing the nature of the case, the
course of proceedings, and the disposition in the court below.
{¶31} “(6) A statement of facts relevant to the assignments of error presented for
review, with appropriate references to the record in accordance with division (D) of this
rule.
{¶32} “(7) An argument containing the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies. The argument may be preceded by a summary.
{¶33} “(8) A conclusion briefly stating the precise relief sought.
{¶34} “ * * *
{¶35} “(D) References in briefs to the record
{¶36} “References in the briefs to parts of the record shall be to the pages of the
parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p.
Muskingum County, Case No. CT2011-0011 6
231. Intelligible abbreviations may be used. If reference is made to evidence, the
admissibility of which is in controversy, reference shall be made to the pages of the
transcript at which the evidence was identified, offered, and received or rejected.”
{¶37} Moreover, the Ohio Supreme Court has stated in Knapp v. Edwards
Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 284, “The duty to provide a
transcript for appellate review falls upon the appellant. This is necessarily so because
an appellant bears the burden of showing error by reference to matters in the record.
See State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355. This principle is
recognized in App.R. 9(B), which provides, in part, that ‘ * * * the appellant shall in
writing order from the reporter a complete transcript or a transcript of such parts of the
proceedings not already on file as he deems necessary for inclusion in the record * * *.’
When portions of the transcript necessary for resolution of assigned errors are omitted
from the record, the reviewing court has nothing to pass upon and thus, as to those
assigned errors, the court has no choice but to presume the validity of the lower court's
proceedings, and affirm.”
{¶38} Appellant herein has failed to meet any of these requirements when filing
his brief.
{¶39} Appellant failed to meet his burden by filing a transcript of the
proceedings, and as such, there is a very limited record from which this Court can
discern what occurred in these proceedings.
{¶40} Even without a transcript, Appellant had other avenues by which he could
have supplemented the record with a recollection of the trial. Namely, “App.R. 9(C)
permits an appellant to submit a narrative transcript of the proceedings when a verbatim
Muskingum County, Case No. CT2011-0011 7
transcript is unavailable, subject to objections from the appellee and approval from the
trial court. App.R. 9(D) authorizes parties to submit an agreed statement of the case in
lieu of the record. There is nothing in the record indicating that plaintiffs even attempted
to avail themselves of these alternatives.” Knapp, supra, at 200.
{¶41} Moreover, this Court has previously held that “[f]actual assertions
appearing in a party's brief, but not in any papers submitted for consideration to the trial
court below, do not constitute part of the official record on appeal, and an appellate
court may not consider these assertions when deciding the merits of the case.” State v.
Lewis, 5th Dist. No.2006–CA–00066, ¶ 7, citing Akro–Plastics v. Drake Industries
(1996), 115 Ohio App.3d 221, 226, 685 N.E.2d 246, 249.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas,
Muskingum County, Ohio, is affirmed.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
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___________________________________
___________________________________
JUDGES
JWW/d 0601
Muskingum County, Case No. CT2011-0011 8
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TERRY LEE KROFFT, JR. :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
STATE OF OHIO, MUSKINGUM :
COUNTY JOB & FAMILY SERVICES, :
CHILD SUPPORT DIVISION :
:
Defendant-Appellee : Case No. CT2011-0011
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES