Bowker v. Bowker ( 2011 )

[Cite as Bowker v. Bowker, 2011-Ohio-4524.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JENNIFER ERIN BOWKER
Petitioner-Appellant
and
BETTY WOOD
Intervening Grand-
Mother-Appellant
-vs-
JASON BOWKER
Petitioner-Appellee
: JUDGES:
: W. Scott Gwin, P.J.
: John W. Wise, J.
: Julie A. Edwards, J.
:
: Case No. 10CAF110085
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Delaware County
Court of Common Pleas, Domestic
Relations Division, Case No.
04-DSC-10-482
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 2, 2011
APPEARANCES:
For Petitioner-Appellants For Petitioner-Appellee
RAYMOND L. EICHENBERGER JEFFREY A. BURKAM
7620 Slate Ridge Blvd. 43 East Central Avenue
Reynoldsburg, Ohio 43068 Delaware, Ohio 43015
Guardian ad Litem
E. MARIANNE BAGEL
103 North Union Street, A
Delaware, Ohio 43015
Edwards, J.
{¶1} Appellants, Jennifer Erin Bowker and Betty Wood, appeal a judgment of
the Delaware County Common Pleas Court awarding custody of J.B. and M.B. to
appellee Jason John Bowker and denying appellant Betty Wood’s petition for
grandparent visitation.
STATEMENT OF FACTS AND CASE
{¶2} The marriage of appellant Jennifer Bowker and appellee was dissolved on
January 10, 2005. The parties have two children: J.B., born in 2002, and M.B., born in
2003. At the time of the dissolution, custody was awarded to Jennifer.
{¶3} On March 6, 2009, appellee filed a motion to modify the allocation of
parental rights and responsibilities and to escrow child support. On June 11, 2009,
appellant Betty Wood, the maternal grandmother of the children, filed a motion to
intervene. Appellee filed a motion to modify temporary custody on July 21, 2009 which
was granted by the court on September 11, 2009.
{¶4} At the time of the hearing on modification of custody, Jennifer was
employed as a free lance writer contracting through Amelia Kirkner for AMSvance.
Appellee was employed at Walmart as a grocery associate.
{¶5} At the time of the dissolution of the marriage in 2005, Jennifer was
employed by Trinity Health at St. Ann’s Hospital as a unit coordinator in ICU and multi-
skilled technician. In 2006 or 2007, Jennifer hurt her shoulder moving a patient and was
prescribed Percocet, Vicoden, and other painkillers. When her prescriptions ran out,
she continued to use the drugs and was fired by her employer for stealing drugs on
November 26, 2007.
{¶6} Jennifer and the children moved in with a friend after Jennifer’s
employment was terminated. She worked for the same friend for SEO, Search Engine
Optimization. This employment terminated in October of 2008, and her friend moved to
Georgia. Unable to afford the rent, Jennifer moved into her mother’s residence.
{¶7} Jennifer was indicted for stealing drugs from St. Ann’s in May of 2008.
She missed her first hearing and was arrested and incarcerated for ten days. She was
accepted into the treatment in lieu of conviction program.
{¶8} On Christmas Day, 2008, Jennifer and her mother got into an argument.
Jennifer moved in with her boyfriend, Richard “Fess” Minck. Fess was living with two
other men and did not have room for the children. On December 28, 2008, Jennifer
moved the children into appellee’s home. At the end of February, 2009, Jennifer and
Fess obtained an apartment in the same complex where the children resided with
appellee. The parties began a shared parenting arrangement. However, when
appellee filed a motion for custody in March, 2009, Jennifer terminated the shared
parenting arrangement and reverted to the custodial provisions of the original decree.
{¶9} The magistrate found a change in circumstances sufficient to justify a
change in custody and recommended that appellee be named the custodial parent,
giving Jennifer visitation rights. The magistrate recommended that Betty Wood be given
visitation on any weekend that would otherwise be Jason’s weekend.
{¶10} Appellants filed objections to the magistrate’s report. Appellants did not
include a transcript of the proceedings, but instead submitted an affidavit of appellants’
counsel of the evidence, arguing that a transcript of the proceedings was unavailable
due to the “outrageous sum” of $2,800.00 quoted by the court reporter to prepare a
transcript, which they claimed they could not afford. The trial court noted that a
transcript was available which appellants had elected not to pay the cost of, and that the
affidavit was not a statement of the evidence but a closing argument. Nonetheless, the
court considered the objections on the merits and named appellee the residential parent
of the children. The court sustained appellee’s objection to grandparent visitation,
finding that the magistrate erred in awarding Betty Wood visitation during weekends
when appellee works because appellee works mostly at night, and it would benefit the
children to keep them settled in one household or the other on weekends. The court
concluded that Betty Wood could visit the children when they were with Jennifer.
{¶11} Appellants assign six errors on appeal:
{¶12} “I. THE MAGISTRATE AND TRIAL JUDGE ERRED AS A MATTER OF
LAW AND TO THE PREJUDICE OF APPELLANT ERIN BOWKER AND APPELLANT
BETTY WOOD IN FAILING TO ISSUE SEPARATE FINDINGS OF FACT AND
CONCLUSIONS OF LAW WHEN REQUESTED TO DO SO BY THE APPELLANTS.
{¶13} “II. THE MAGISTRATE AND TRIAL COURT ERRED AS A MATTER OF
LAW AND ABUSED THEIR DISCRETION IN FINDING THAT THERE WAS A CHANGE
OF CIRCUMSTANCE IN THE LIVES OF APPELLANT ERIN BOWKER AND THE TWO
(2) MINOR CHILDREN SO AS TO MERIT A MODIFICATION OF PARENTAL RIGHTS
AND RESPONSIBILITIES.
{¶14} “III. THE TRIAL COURT AND MAGISTRATE ERRED AS A MATTER OF
LAW AND ABUSED THEIR DISCRETION IN THE TEMPORARY CHANGE OF
PARENTAL RIGHTS AND RESPONSIBILITIES WHICH OCCURRED ON
SEPTEMBER 11, 2009.
{¶15} “IV. THE TRIAL COURT AND MAGISTRATE ERRED AS A MATTER OF
LAW AND ABUSED THEIR DISCRETION BY FORCING APPELLANT ERIN BOWKER
TO TESTIFY AT THE VARIOUS HEARINGS IN THE CASE ABOUT HER MEDICAL
CONDITIONS AND BY REFUSING TO HONOR APPELLANT ERIN BOWKER’S
MEDICAL PRIVILEGE IN THE MATTER.
{¶16} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
HIS DISCRETION IN REDUCING THE GRANDPARENT VISITATION OF
INTERVENING PARTY BETTY WOOD WHICH HAD BEEN SET BY THE
MAGISTRATE.
{¶17} “VI. THE MAGISTRATE AND TRIAL COURT ERRED AS A MATTER OF
LAW AND ABUSED THEIR DISCRETION IN ORDERING THE APPOINTMENT OF A
GUARDIAN AD LITEM IN THE CASE OVER THE OBJECTION OF APPELLANT ERIN
BOWKER, AND THEN FORCING APPELLANT ERIN BOWKER TO PAY FOR HALF
OF THE FEES OF THE GUARDIAN AD LITEM, EVEN THOUGH SHE STATED IN
HER ORIGINAL MOTION THAT SHE COULD NOT AND CAN NOT AFFORD THE
SAME.”
I
{¶18} In their first assignment of error, appellants argue the trial court erred in
failing to issue separate findings of fact and conclusions of law upon request.
{¶19} The magistrate’s 11-page decision was filed on February 12, 2010. On
February 22, 2010, Jennifer filed a request for findings of fact and conclusions of law.
The magistrate ruled that the decision filed on February 12 shall constitute Findings of
Fact and Conclusions of Law. Judgment Entry, February 25, 2010. Appellant filed an
objection to the magistrate’s decision. The trial court found that a reading of the
magistrate’s decision of February 12, 2010, shows that the magistrate made thorough
findings of fact and conclusions of law and overruled the objection.
{¶20} Civ. R. 53(D)(3)(a)(ii) provides:
{¶21} “Subject to the terms of the relevant reference, a magistrate’s decision
may be general unless findings of fact and conclusions of law are timely requested by a
party or otherwise required by law. A request for findings of fact and conclusions of law
shall be made before the entry of a magistrate’s decision or within seven days after the
filing of a magistrate’s decision. If a request for findings of fact and conclusions of law is
timely made, the magistrate may require any or all of the parties to submit proposed
findings of fact and conclusions of law.”
{¶22} This Court has previously held that where a magistrate in effect made
findings of fact and conclusions of law in the magistrate’s decision and stated in
response to a timely request for findings that all pertinent findings were included in that
decision, the court does not err in denying a request for further findings. Fogress v.
McKee (August 11, 1999) Licking App. No. 99CA15, unreported.
{¶23} The decision of the magistrate included extensive findings explaining his
reasoning for recommending the change in custody. The magistrate’s decision was
sufficient to constitute findings of fact and conclusions of law in the instant case.
{¶24} The first assignment of error is overruled.
II
{¶25} In their second assignment of error, appellants argue the court erred in
finding a change in circumstances sufficient to justify a change in custody.
{¶26} We first must address the state of the record regarding the lack of a
transcript of the proceedings in this case.
{¶27} Civ. R. 53(D)(3)(b)(iii) provides
{¶28} “(iii) Objection to magistrate’s factual finding; transcript or affidavit. An
objection to a factual finding, whether or not specifically designated as a finding of fact
under Civ. R. 53(D)(3)(a)(ii), 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. With leave of court, alternative technology or manner of
reviewing the relevant evidence may be considered. The objecting party shall file the
transcript or affidavit with the court within thirty days after filing objections unless the
court extends the time in writing for preparation of the transcript or other good cause. If
a party files timely objections prior to the date on which a transcript is prepared, the
party may seek leave of court to supplement the objections.”
{¶29} Where an appellant 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. Stark v. Haser, Delaware
App. No. 03CAF11057, 2004-Ohio-4641, ¶15. However, appellant argues that a
transcript of the proceedings was not available because she was indigent, and instead
produced an affidavit of the evidence. The trial court made a specific finding that a
transcript was available and further found that the affidavit of the evidence filed by
appellant was in the nature of closing argument rather than a statement of the evidence.
While appellants claimed at that time they could not afford a transcript, no affidavit of
indigency was filed prior to the court’s decision.
{¶30} On appeal, appellants sought to proceed by way of an App. R. 9(C)
statement of the evidence rather than filing a transcript, again claiming a transcript is
unavailable due to the indigency. This Court initially denied appellants’ motion for an
order submitting their affidavit of the evidence to the trial court for settlement and
approval, finding that appellants had not averred that a transcript was unavailable.
Judgment Entry, January 31, 2011. Appellants filed a motion to reconsider, and filed an
affidavit of Jennifer Bowker stating that she is indigent and cannot afford to pay for a
transcript. This Court noted that appellants did not properly initiate App. R. 9(C)
procedure, but nevertheless we remanded the case to the trial court for the purpose of
approving or settling appellants’ proposed 9(C) statement. The trial court did so on
March 15, 2011, striking the majority of appellants’ statement as either conclusory or
argumentative and not in the nature of statements of fact. Appellants then filed a
motion to “abrogate the trial judge’s entry of March 15 and remand to the trial court
magistrate.” This Court overruled that motion on April 1, 2011.
{¶31} The Ohio Supreme Court has held that a transcript is “unavailable” for the
purposes of App. R. 9(C) to an indigent appellant unable to bear the cost of providing a
transcript. State ex rel. Motley v. Capers (1986), 23 Ohio St. 3d 56, 491 N.E.2d 311.
The Tenth District has similarly concluded that if a transcript is unavailable due to
indigency for purposes of App. R. 9(C), it is similarly unavailable to an indigent person
pursuant to Civ. R. 53 and an affidavit of the evidence may be used in lieu of a
transcript. Gill v. Grafton Correctional Institution, Franklin App. No. 09AP-1019, 2010-
Ohio-2977.
{¶32} In the instant case, appellant Jennifer Bowker did not file an affidavit of
indigency until a final judgment had been issued by the trial court and the case was
pending on appeal. Therefore she did not demonstrate that the transcript was
unavailable for the proceeding on objections to the magistrate’s report. In any event,
the statement of evidence provided pursuant to App. R. 9(C) was, as noted by the trial
court, not in the nature of a statement of the evidence but rather in the nature of a
closing argument, as it was made up almost entirely of conclusory and argumentative
statements rather than a statement of what evidence was presented by the parties in
the trial court. When the court struck the majority of this document, instead of seeking
to prepare and settle a new statement of the evidence which complied with App.R. 9,
appellants moved this Court to order the statement to be submitted to the magistrate
instead, which was denied by this Court. Given that there was not a valid statement of
the evidence or a transcript before the trial court on ruling on appellant’s objections, nor
do we have anything by way of evidence left in the App. R. 9(C) statement by which to
challenge the findings of the magistrate concerning change in circumstances, we must
find the magistrate’s findings of fact to be established. See Stark v. Haser, supra.
{¶33} R.C. 3109.04(E)(1)(a) provides for a change in the residential parent:
{¶34} “(E)(1)(a) The court shall not modify a prior decree allocating parental
rights and responsibilities for the care of children unless it finds, based on facts that
have arisen since the prior decree or that were unknown to the court at the time of the
prior decree, that a change has occurred in the circumstances of the child, the child’s
residential parent, or either of the parents subject to a shared parenting decree, and that
the modification is necessary to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent designated by the prior decree or
the prior shared parenting decree, unless a modification is in the best interest of the
child and one of the following applies:
{¶35} “(i) The residential parent agrees to a change in the residential parent or
both parents under a shared parenting decree agree to a change in the designation of
residential parent.
{¶36} “(ii) The child, with the consent of the residential parent or of both parents
under a shared parenting decree, has been integrated into the family of the person
seeking to become the residential parent.
{¶37} “(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child.”
{¶38} The Ohio Supreme Court has further explained the standard for change of
residential parent status:
{¶39} “Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a), may
only be made ‘based on facts that have arisen since the prior decree or that were
unknown to the court at the time of the prior decree, that a change has occurred in the
circumstances of the child, the child's residential parent, or either of the parents subject
to shared parenting decree, and that the modification is necessary to serve the best
interest of the child.’ This is a high standard, as a ‘change’ must have occurred in the
life of the child or the parent before the court will consider whether the current
designation of residential parent and legal custodian should be altered.” Fisher v.
Hasenjager, 116 Ohio St. 3d 59-60, 876 N.E.2d 546, 2007-Ohio-5589.
{¶40} The magistrate made the following findings regarding change in
circumstances:
{¶41} “A. change has occurred in the circumstances of the children and Jennifer.
Instead of the children being age 1 and 2, they are now 6 and 7. They attend first and
second grade. Jason has an IEP and is struggling with reading and writing. Jason was
almost a year behind in first grade. Jennifer has worked for St. Ann’s, Amelia Kirkner –
SEO Seach Engine Optimization, Select Specialty Hospital, and now again with Amelia
Kirkner at AMSvance having been terminated with her employment at St. Ann’s and
Select Specialty Hospital. Jennifer has lived at Sessis Drive with Amelia, at 8454
Norahrow with her mother, at 16 Crestview, Clintonville with Fess, at 80 Broad
Meadows with Fess, and since October of 2009 at 2234 Belcher (also with Fess). The
children have attended Colonial Hills Elementary, Worthington Estates Elementary,
Indian Springs Elementary, and currently due to the temporary court order Woodward
Elementary in the Delaware, Ohio school district. In November of 2007, Jennifer was
addicted to pain killers. She was caught and her employment was terminated. Jennifer
was charged with theft of drugs and received treatment in lieu of conviction. Jennifer
admitted to the guardian ad litem that she used cocaine. Jennifer has not had 12
straight months where she gave clean urine. In January of 2009, Jennifer gave no
sample. In February and March of 2009, Jennifer tested negative, but the tests were
‘dilutes.’ Jennifer gave no sample in April of 2009. During this time Jennifer posted
pictures on MySpace that showed a terrible open infection of her arm as if her arm was
being eaten by flesh-eating bacteria. Jennifer stated that her surgery in June of 2009
was to remove a completely encrusted cancerous tumor. Yet, Jennifer has not been
prescribed any follow-up chemo therapy. Jennifer has also been diagnosed as being bi-
polar. These facts have arisen since the prior decree.” Magistrate’s Decision, February
12, 2010, page 8.
{¶42} The findings of fact of the magistrate show a change in the circumstances
of both the children and the residential parent. While appellant now wants to argue that
the findings concerning Jennifer’s drug use are not supported by the evidence, none of
the statements remaining in appellant’s App. R. 9(C) statement support appellant’s
argument and appellant failed to file a transcript or proper affidavit of evidence on
objections to the magistrate’s report in the trial court. Accordingly, the second
assignment of error is overruled.
III
{¶43} Appellant argues the court erred in awarding appellee temporary custody
of the children on September 11, 2009.
{¶44} This Court has previously held that temporary orders are merged into the
final decree and cannot be claimed as error. Ruby v. Ruby (August 11, 1999),
Coshocton App. No. 99-CA-4, unreported. Further, we have no transcript of the
proceedings nor is there anything in the statement of evidence to support appellant’s
claim that the court abused its discretion in the order of temporary custody to appellee.
The findings of fact demonstrate that prior to the award of temporary custody, appellant
Jennifer Bowker had voluntarily placed the children in appellee’s home when she
moved in with her boyfriend and there was no room for the children in her residence.
{¶45} The third assignment of error is overruled.
IV
{¶46} In their fourth assignment of error, appellants argue that the court erred in
forcing Jennifer Bowker to testify at various hearings in the case about her medical
conditions and refusing to honor her medical privilege.
{¶47} The trial court found that the magistrate did not order Jennifer to testify
concerning her medical history, she agreed to testify concerning her medical
information, after her objection on the basis of privilege was overruled, in order to allow
the trial to proceed. A finding of no medical privilege is immediately appealable, and
had Jennifer appealed this ruling, the trial would not have proceeded until the appeal
process was complete. See Brown v. Yothers (1988), 56 Ohio App. 3d 29. Nothing in
the statement of evidence as settled by the trial court supports appellant’s claim that
she was forced to testify concerning her medical condition, and we do not have a
transcript of the proceedings.
{¶48} The fourth assignment of error is overruled.
V
{¶49} In the fifth assignment of error, appellant Betty Wood argues the court
erred in reducing her grandparent visitation. Betty Wood has not filed an affidavit of
indigency in this case. Therefore, the transcript of the proceedings is not unavailable as
to Betty Wood, and a transcript has not been provided. 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. Knapp v.
Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199, 400 N.E.2d 384.
{¶50} The fifth assignment of error is overruled.
VI
{¶51} In the sixth assignment of error, appellant argues the court erred in
appointing a guardian ad litem and in requiring appellant Jennifer Bowker to pay half of
the fees of the guardian.
{¶52} Appellant argues at page 36 of her brief filed March 21, 2011, “Due to the
drastic space page restrictions imposed upon the Appellants by rulings of the Court in
this case, Appellants will argue this Assignment of Error in their reply brief.” On March
3, 2011, this Court denied appellants’ request to exceed the page limit for a brief and
granted leave to file a brief which complies with the Local and Appellate Rules on or
before March 25, 2011. Appellants had previously filed a brief which did not comply
with the page limitations set by rule.
{¶53} App. R. 16(A)(7) provides that assignments of error shall be argued in the
brief of appellant. App. R. 16(C) states that a reply brief is to “reply to the brief of the
appellee.” New assignments of error cannot be raised in a reply brief. State v. Nichols,
Coshocton App. No. 01-CA-016, 2002-Ohio-4048, citing Sheppard v. Mack (1980), 68
Ohio App. 2d 95, 427 N.E.2d 522.
{¶54} In the instant case, the sixth assignment of error is not argued in
appellants’ brief and is therefore not properly before this court. Further, R.C.
3109.04(B)(2)(a) provides:
{¶55} “(2) If the court interviews any child pursuant to division (B)(1) of this
section, all of the following apply:
{¶56} “(a) The court, in its discretion, may and, upon the motion of either parent,
shall appoint a guardian ad litem for the child.”
{¶57} Appellee moved the court for appointment of a guardian ad litem, and the
court interviewed the children as reflected by the magistrate’s decision at page nine.
Therefore, appointment of the guardian was statutorily required. Further, although
appellant did not file an affidavit of indigency in the trial court, the court ordered her one-
half of the guardian’s fees to be paid from the indigent fund established for such fees
and for Jennifer to reimburse the fund at the rate of $100 per month. Appellant was not
ordered to pay child support in this case, and has not demonstrated that the court
abused its discretion in ordering her to reimburse the guardian’s fund to cover her share
of the fees.
{¶58} The sixth assignment of error is overruled.
{¶59} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0629
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JENNIFER ERIN BOWKER :
:
Petitioner-Appellant :
:
and :
:
BETTY WOOD :
:
Intervening Grand- :
Mother-appellant :
:
:
-vs- : JUDGMENT ENTRY
:
JASON BOWKER :
:
Petitioner-Appellee : CASE NO. 10CAF110085
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas, Domestic Relations
Division, is affirmed. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES