Harris v. Burgess , 2011 Ohio 1506 ( 2011 )

[Cite as Harris v. Burgess, 2011-Ohio-1506.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTOPHER HARRIS : JUDGES:
: Hon. William B. Hoffman, P.J.
Petitioner-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
JOHANNA BURGESS : Case No. 10-CA-13
:
Petitioner-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2004DS00291
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 24, 2011
APPEARANCES:
For Petitioner-Appellant For Petitioner-Appellee
CHRISTOPHER HARRIS, PRO SE NICKOLAS K. MCCOY
104 Georges Creek Drive 420 East Main Street
Pickerington, OH 43147 Lancaster, OH 43130
Perry County, Case No. 10-CA-13 2
Farmer, J.
{¶1} On October 26, 2004, appellant, Christopher Harris, and appellee,
Johanna Burgess, were granted a dissolution. Four children were born as issue of the
marriage. Appellant was named residential parent of the children. No formal child
support order was issued.
{¶2} On May 22, 2007, appellee was deemed residential parent of the children.
Appellant was ordered to pay appellee child support in the amount of $1,049.72 per
month.
{¶3} On July 27, 2009, appellant became the permanent residential parent of
the parties' oldest child.
{¶4} On October 1, 2009, appellant requested an administrative review of child
support by the Perry County Child Support Enforcement Agency (hereinafter
"PCCSEA"). A hearing was held on December 16, 2009. By report filed December 17,
2009, the PCCSEA recommended that appellant's child support obligation be lowered to
$906.13 per month with private health insurance being provided, or $866.59 per month
when private health insurance was not being provided plus $198.76 per month for cash
medical support.
{¶5} On January 4, 2010, the PCCSEA asked the trial court to adopt the
recommendation. Two days later, appellee filed a request for a hearing on the
recommendations. A hearing before a magistrate was held on April 30, 2010. By
decision filed May 25, 2010, the magistrate increased PCCSEA's recommendation to
$981.16 per month with private health insurance being provided, or $940.20 per month
when private health insurance was not being provided plus $198.72 per month for cash
Perry County, Case No. 10-CA-13 3
medical support. Objections were not filed. The trial court approved and adopted the
magistrate's decision.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ABUSED DISCRETION AND ERRED IN
INCLUSION OF ADDITIONAL CHILD CARE EXPENSES FOR APPELLEE, WHICH
SEVERELY PREJUDICED APPELLANT."
II
{¶8} "THE TRIAL COURT ABUSED DISCRETION THROUGH USE OF
PROPERLY EXCLUDED/UNADMITTED EVIDENCE."
III
{¶9} "ALTERING PCSEA'S FINDING FOR CHILD CARE EXPENSES WAS
AGAINST MANIFEST WEIGHT OF THE EVIDENCE."
IV
{¶10} "ASSESSING COURT COSTS TO APPELLEE INEQUITABLE/ABUSE OF
DISCRETION."
{¶11} At the outset, we find objections to the magistrate's report were not filed
pursuant to Civ.R. 53(D)(3)(b). Normally, this failure would result in a presumption of
regularity of the proceedings under Knapp v. Edwards Laboratories (1980), 61 Ohio
St.2d 197; however, we note in the magistrate's decision wherein the warning on the
need to file objections was set forth, the incorrect civil rule was cited:
Perry County, Case No. 10-CA-13 4
{¶12} "A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S
ADOPTION OF ANY FINDING OF FACT OR CONCLUSION OF LAW IN THIS
DECISION UNLESS THE PARTY TIMELY AND SPECIFICALLY OBJECTS TO THE
FINDING OR CONCLUSION AS REQUIRED BY CIV.R.53(E)(3)."
{¶13} Under the rule in effect on May 25, 2010, there was no longer a
subsection (E)(3). We conclude the warning and notice were ineffective, and we will
review the assignments of error despite the failure to file objections.
I
{¶14} Appellant claims the trial court erred in considering appellee's child care
expenses and as a result, he was severely prejudiced. It appears appellant's issue
under this assignment centers on the trial court's denial of his continuance request just
prior to the hearing.
{¶15} The grant or denial of a continuance rests in the trial court's sound
discretion. State v. Unger (1981), 67 Ohio St.2d 65. In order to find an abuse of that
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217.
{¶16} Pursuant to a final hearing order filed January 11, 2010, the trial court set
the hearing for April 30, 2010, and listed the discovery cut-off date as "30 days prior to
trial." During the discussion on the continuance request, appellant admitted that he
served appellee with interrogatories and document requests on March 29 and 30, 2010.
T. at 5. Appellant began his discovery request when discovery should have already
been completed.
Perry County, Case No. 10-CA-13 5
{¶17} We note as early as the December 17, 2009 administrative
recommendations, appellant was aware of the child care expenses issue. The failure to
propound timely interrogatories and document requests was clearly an error by
appellant.
{¶18} The magistrate addressed appellant's request and denied same:
{¶19} "MAGISTRATE BOLYARD: ***Mr. Harris, I'm not going to grant a
continuance based on your discovery request because discovery should have been
completed at the time you first sent it out. It should have already been completed." T.
at 11-12.
{¶20} Upon review, we find this decision was not an abuse of discretion.
{¶21} Assignment of Error I is denied.
II
{¶22} Appellant claims the decision was based on properly excluded,
unadmitted evidence. We disagree.
{¶23} Appellant argues the magistrate's finding at No. 6, "Ms. Burgess has child
care expenses in the amount of $60.00 per week and $200.00 per week for five weeks
in the summer" was based upon excluded and inadmissible evidence.
{¶24} During the hearing, the magistrate specifically asked appellee the amount
of her child care expenses:
{¶25} "MAGISTRATE BOLYARD: What are your child care expenses?
{¶26} "MS. BURGESS: Right now we pay $60 a week, and it will be $200 a
week during the summer for five weeks." T. at 63.
Perry County, Case No. 10-CA-13 6
{¶27} The magistrate did not permit any documentation on the issue because of
a discovery violation. T. at 67.
{¶28} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,
certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-
Ohio-260.
{¶29} From the magistrate's findings, it is clear that the magistrate believed
appellee's statement regardless of the lack of documentation.
{¶30} Upon review, we conclude there is direct evidence in the record by
appellee of her child care expenses, and the findings were based upon that direct
testimony. There is no indication that any documentation was considered by the
magistrate.
{¶31} Assignment of Error II is denied.
III
{¶32} Appellant claims the decision to alter PCCSEA's recommendations for
child care expenses was against the manifest weight of the evidence. We disagree.
{¶33} A judgment supported by some competent, credible evidence will not be
reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must
not substitute its judgment for that of the trial court where there exists some competent
Perry County, Case No. 10-CA-13 7
and credible evidence supporting the judgment rendered by the trial court. Myers v.
Garson, 66 Ohio St.3d 610, 1993-Ohio-9.
{¶34} As we addressed in Assignment of Error II, appellee's direct testimony
established what her child care expenses were and would be in the summer. On the
trial court's worksheet, child care expenses assigned to appellee were $2,979.60 as
opposed to $1,150.07 on the PCCSEA's worksheet. This change in computation
resulted in increased child support. Admittedly, this was an increase from the
administrative recommendations issued some four months prior to the magistrate's
hearing.
{¶35} The additional child care expense for four children resulted in a net
increase of $75.03 with health insurance per month, or $73.61 without health insurance
per month.
{¶36} Upon review, we find competent credible evidence to support the
magistrate's/trial court's decision.
{¶37} Assignment of Error III is denied.
IV
{¶38} Appellant claims the trial court erred in accessing court costs to him. We
disagree.
{¶39} The assessment of costs is within the trial court's discretion and will not be
reversed absent an abuse of discretion. Taylor v. McCullough Hyde Memorial Hospital
(1996), 116 Ohio App.3d 595; Blakemore.
Perry County, Case No. 10-CA-13 8
{¶40} We note appellant requested the administrative review hearing. In the
appellate rules, the loser is responsible for court costs. See, App.R. 24. Once having
lost, it was appellant's burden to pay the court costs.
{¶41} Upon review, we find no abuse of discretion by the trial court in assessing
court costs to appellant.
{¶42} Assignment of Error IV is denied.
{¶43} The judgment of the Court of Common Pleas of Perry County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 224
Perry County, Case No. 10-CA-13 9
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTOPHER HARRIS :
:
Petitioner-Appellant :
:
-vs- : JUDGMENT ENTRY
:
JOHANNA BURGESS :
:
Petitioner-Appellee : CASE NO. 10-CA-13
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Perry County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES