Tucker v. Hines , 2020 Ohio 1086 ( 2020 )

[Cite as Tucker v. Hines, 2020-Ohio-1086.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Michael Tucker, :
Plaintiff-Appellee, :
No. 18AP-375
v. : (C.P.C. No. 15JU-12201)
Tasha Hines, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 24, 2020
On brief: Cynthia M. Roy, for appellee. Argued: Cynthia M.
Roy.
On brief: Petroff Law Offices, LLC, and Christopher L.
Trolinger, and Erika M. Smitherman, for appellant. Argued:
Christopher L. Trolinger.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BROWN, J.
{¶ 1} Tasha Hines ("mother"), defendant-appellant, appeals from the judgment
entry of the Franklin County Common Pleas Court, Division of Domestic Relations,
Juvenile Branch, in which the court issued a decision with regard to allocation of parental
rights and responsibilities and child support.
{¶ 2} Mother and Michael Tucker ("father"), plaintiff-appellee, were never married
but have three children together, who were 5, 6, and 11 years old at the time of trial. On
August 23, 2012, an administrative child support order was issued, ordering father to pay
child support to mother of $1,000.73 per month when health insurance is available and
$1,020.74 per month when health insurance is not available.
No. 18AP-375 2
{¶ 3} According to father's affidavit in support of temporary orders, father was
terminated from his job as a Columbus police officer after he falsified a report. According
to the child support computation worksheet attached to the magistrate's decision, at the
time of his termination, he earned $78,388 per year as a police officer.
{¶ 4} On October 2, 2015, father filed a complaint for allocation of parental rights
and responsibilities. A trial was held before the magistrate on various dates from January
to June 2017. According to the child support computation worksheet attached to the
magistrate's decision, at the time of trial, father was earning $33,200 per year working for
Sherwin-Williams. Mother was earning $58,593 per year at Central Ohio Transit Authority.
On February 23, 2017, mother filed a motion to interview all three children. The magistrate
interviewed only the oldest child on October 6, 2017.
{¶ 5} On May 18, 2018, the magistrate issued a decision in which the magistrate
ordered shared parenting and designated father the school placement parent. The
magistrate found that father established a change in circumstances sufficient to modify
child support as a result of his decrease in income. The magistrate ordered mother, as the
higher earning parent, to pay father child support. For the period March 15, through
August 14, 2017, the magistrate ordered mother to pay father $781.51 per month for child
support when private health insurance is in effect, and $635.74 per month, plus $203.94
per month in cash medical support, when private health insurance is not in effect. Effective
August 15, 2017, the magistrate ordered mother to pay father $617.23 per month for child
support when private health insurance is in effect, and $620.57 per month, plus $225.75
per month in cash medical support, when private health insurance is not in effect, which
were downward deviations from the child support worksheet based upon equal shared
parenting time. Neither mother nor father filed objections to the magistrate's decision, and
the trial court adopted the decision on May 18, 2018. Mother has appealed the trial court's
judgment, asserting the following four assignments of error:
[I.] THE TRIAL COURT COMMITTED PLAIN ERROR BY
FAILING TO FIND APPELLEE VOLUNTARILY
UNDEREMPLOYED.
[II.] THE TRIAL COURT COMMITTED PLAIN ERROR BY
FAILING TO IMPUTE APPELLEE TO HIS PRIOR INCOME
OF $78,388.
No. 18AP-375 3
[III.] THE TRIAL COURT COMMITTED PLAIN ERROR BY
FINDING A CHANGE IN CIRCUMSTANCES FOR PURPOSES
OF MODIFYING CHILD SUPPORT DUE TO A CHANGE IN
APPELLEE'S INCOME.
[IV.] THE TRIAL COURT ERRED WHEN IT FAILED TO
INTERVIEW THE CHILDREN WITHOUT REQUISITE
INQUIRY AND FINDINGS AS TO THE CHILDREN'S
REASONING ABILITY AND SUCH IS PLAIN ERROR.
{¶ 6} Before addressing mother's assignments of error, we must address two
matters. First, as mother acknowledges, mother failed to file any objections to the
magistrate's decision. Juv.R. 40(D)(3)(b)(i) provides that a party may file written
objections to a magistrate's decision within 14 days after that decision is filed. However, a
party who fails to timely object to a magistrate's decision is limited by operation of Juv.R.
40(D)(3)(b)(iv) to claims of plain error on appeal. We note further the magistrate's decision
satisfies the requirements of Juv.R. 40(D)(3)(a)(iii) by conspicuously stating that the
parties were prohibited from assigning on appeal the court's adoption of any factual finding
or legal conclusion unless the party specifically objected as required by Juv.R. 40(D)(3)(b).
Thus, because mother did not object to the magistrate's decision, she waived all but plain
error.
{¶ 7} To constitute plain error, the error must be obvious on the record. See State
v. Tichon, 102 Ohio App. 3d 758, 767 (9th Dist.1995). In the context of a civil appeal, "an
appellate court only applies the plain-error doctrine if the asserted error 'seriously affects
the basic fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself.' " Claffey v. Natl. City Bank, 10th
Dist. No. 11AP-95, 2011-Ohio-4926, ¶ 15, quoting Goldfuss v. Davidson, 79 Ohio St. 3d 116,
123 (1997). Notice of plain error is to be taken with utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice. State v. Phillips, 74
Ohio St. 3d 72, 83 (1995).
{¶ 8} Furthermore, with her appeal in this court, mother has filed a transcript of
the proceedings before the magistrate. However, because mother failed to file objections to
the magistrate's decision, the trial court did not have a transcript of the proceedings before
the magistrate when it adopted the magistrate's decision. This court has addressed the same
situation, finding:
No. 18AP-375 4
Finally, a transcript of the proceedings before the magistrate is
part of the record on appeal; however, the transcript was not
before the trial court when it adopted the magistrate's decision.
"Appellate review is limited to the record as it existed at the
time the trial court rendered its judgment." Franks v. Rankin,
10th Dist. No. 11AP-934, 2012-Ohio-1920, ¶ 73, citing Wiltz v.
Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-
Ohio-5616, ¶ 13; Wallace v. Mantych Metalworking, 189 Ohio
App.3d 25, 2010-Ohio-3765, ¶ 10, 937 N.E.2d 177 (2d Dist.).
" 'A reviewing court cannot add matter to the record before it,
which was not a part of the trial court's proceedings, and then
decide the appeal on the basis of the new matter.' " Id., quoting
State v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500 (1978),
paragraph one of the syllabus. Therefore, we will not consider
the transcript in ruling on appellant's assignments of error.
" ' "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." ' " Black v.
Columbus Sports Network, LLC, 10th Dist. No. 13AP-1025,
2014-Ohio-3607, ¶ 39, quoting Estate of Stepien v. Robinson,
11th Dist. No. 2013-L-001, 2013-Ohio-4306, ¶ 29, quoting
Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400
N.E.2d 384 (1980).
Blevins v. Blevins, 10th Dist. No. 14AP-175, 2014-Ohio-3933, ¶ 14. See also Townsend v.
Phimmasone Phommarath, 10th Dist. No. 10AP-598, 2011-Ohio-1891, ¶ 7-9 (when plaintiff
failed to file objections pursuant to Juv.R. 40(D)(3)(b) and the trial court did not have the
opportunity to review the transcript as part of determining whether to adopt the
magistrate's decision, this court is precluded from considering the transcript on appeal).
Other courts have held similarly. See Meeker v. Howard, 7th Dist. No. 17 JE 0013, 2017-
Ohio-9410, ¶ 21-24 (where trial court struck appellant's improper objections and no
transcript of the magistrate's hearing was ever filed before the trial court, but appellant did
file a transcript with the appellate court, the appellate court could not consider the
transcript because an appellate court cannot add matter to the record before it, which was
not a part of the trial court's proceedings); J.S. v. T.S., 5th Dist. No. 16CA18, 2017-Ohio-
1042, ¶ 22 (where the appellant filed no objections or transcript of the magistrate's hearing
with the trial court, but filed a transcript with the appellate court, the appellate court cannot
consider the transcript, and the magistrate's findings of fact are considered established and
No. 18AP-375 5
not subject to attack on appeal); A.A. v. F.A., 5th Dist. No. 18 CAF 10 0079, 2019-Ohio-
1706, ¶ 16-18 (appellant's failure to file a transcript of the hearing before the magistrate
with the trial court or file objections, precludes the appellate court from considering the
transcript, and the magistrate's findings of fact are considered established). Therefore, in
the present case, because mother failed to file objections and a transcript of the magistrate's
proceedings with the trial court, we may not consider the transcript on appeal and must
review her assignments of error only for error of law.
{¶ 9} It is with these precepts in mind that we proceed to mother's assignments of
error. We will address mother's first, second, and third assignments of error together, as
they are related. In her first assignment of error mother argues the trial court committed
plain error when it failed to find father was voluntarily underemployed. Mother asserts
father was voluntarily underemployed due to his own misconduct and bad actions, which
resulted in his termination from employment as a police officer. Mother argues in her
second assignment of error that the trial court committed plain error when it found father's
income was $31,200 based upon his current employment with Sherwin-Williams and failed
to impute his prior income of $78,388 before his termination as a police officer. Mother
argues in her third assignment of error that the trial court committed plain error when it
found a change in circumstances based upon father's change in income. Mother contends
that father's voluntary underemployment does not constitute a change in circumstances
sufficient to warrant the modification of a child support order.
{¶ 10} Unfortunately, neither party filed a request for findings of fact and
conclusions of law with the magistrate. Although the magistrate indicated she included
some findings and conclusions in her decision to provide guidance to the reviewing court,
the magistrate's decision contains none of the facts relied upon by mother in her current
arguments. The magistrate does not mention father's prior employment, his misconduct,
or his termination from that prior employment. The trial court did order that, lacking any
evidence of father's income while he was unemployed from January 1, 2016 until he gained
employment with Sherwin-Williams on March 15, 2017, father should have his "previous
income" imputed for this period of unemployment. However, the magistrate does not
mention any contention by mother that father's income from his prior employment should
have been imputed to him for the period when he was employed with Sherwin-Williams.
No. 18AP-375 6
There is simply nothing in the magistrate's decision that addresses these issues or provides
any factual basis for questioning the magistrate's determination. After a review of the
magistrate's decision and the limited facts contained therein, we cannot find any plain error
in the magistrate's computation of father's income during his period of employment with
Sherwin-Williams or in the magistrate's failure to find father was voluntarily
underemployed. For these reasons, we overrule mother's first, second, and third
assignments of error.
{¶ 11} Mother argues in her fourth assignment of error the trial court committed
plain error when it interviewed only the oldest child, who was 11 years old, and failed to
interview the other two children, who were 5 and 6 years old, without the required inquiry
into their reasoning ability. Mother maintains the trial court should have undertaken an
inquiry as to whether the two younger children could express their wishes or had sufficient
reasoning ability. Mother contends that R.C. 3109.04(B)(2)(b) does not provide the court
with any discretion whether to conduct an interview to determine the reasoning ability of
the children.
{¶ 12} R.C. 3109.04(B)(1) provides that "[i]n determining the child's best interest
for purposes of making its allocation of the parental rights and responsibilities for the care
of the child and for purposes of resolving any issues related to the making of that allocation,
the court, in its discretion, may and, upon the request of either party, shall interview in
chambers any or all of the involved children regarding their wishes and concerns with
respect to the allocation." R.C. 3109.04(B)(2)(b) provides that, if the court interviews any
child pursuant to R.C. 3108.04(B)(1):
The court first shall determine the reasoning ability of the child.
If the court determines that the child does not have sufficient
reasoning ability to express the child's wishes and concern with
respect to the allocation of parental rights and responsibilities
for the care of the child, it shall not determine the child's wishes
and concerns with respect to the allocation. If the court
determines that the child has sufficient reasoning ability to
express the child's wishes or concerns with respect to the
allocation, it then shall determine whether, because of special
circumstances, it would not be in the best interest of the child
to determine the child's wishes and concerns with respect to the
allocation. If the court determines that, because of special
circumstances, it would not be in the best interest of the child
to determine the child's wishes and concerns with respect to the
No. 18AP-375 7
allocation, it shall not determine the child's wishes and
concerns with respect to the allocation and shall enter its
written findings of fact and opinion in the journal. If the court
determines that it would be in the best interests of the child to
determine the child's wishes and concerns with respect to the
allocation, it shall proceed to make that determination.
{¶ 13} In the present case, again, unfortunately, the magistrate's decision does not
reveal any factual findings related to this issue. The magistrate does mention in a single
sentence that she interviewed the oldest child, in camera, and the record includes mother's
February 23, 2017 motion for in camera interview of all three children. However, there is
no discussion of the issue in the decision.
{¶ 14} Nevertheless, due to our inability to consider the transcript, we do not know
whether mother renewed her request for an interview at trial or, more importantly, whether
mother agreed that only the oldest child would be interviewed, thereby waiving the issue
for purposes of appeal. The Ninth Appellate District addressed a scenario where a father
had filed a motion for in camera interview of the subject child, but never renewed his
request at trial. See Schmitt v. Ward, 9th Dist. No. 27805, 2016-Ohio-5693. In Schmitt, the
court held:
[E]ven if a party has filed a written motion for an in camera
interview of the parties' minor child under Section
3109.04(B)(1), the party must raise the issue at trial in order to
preserve it for appeal. Miracle v. Allen, 9th Dist. Lorain No.
05CA008843, 2006-Ohio-5063, ¶ 6. A party that fails "to raise
the issue of the trial court's failure to interview the minor child
at a time when the trial court could have corrected the error,"
forfeits the issue for purposes of appeal. Id.
Id. at ¶ 16. See also In re M.H., 8th Dist. No. 107612, 2019-Ohio-2439, ¶ 37-38 (because the
mother did not renew her request for in camera interview of the children at trial, she waived
the issue).
{¶ 15} Given the state of the record before this court, our inability to determine
whether mother raised her current arguments at trial when they could have been corrected,
and that we are required to presume regularity in the proceedings, we can find no plain
error in the trial court's decision to interview only the oldest child in camera. We also note
that because the children's interests were already represented by the Guardian Ad Litem
("GAL"), there can be little prejudice in the trial court's failure to interview all three
No. 18AP-375 8
children. See M.H. (noting that, even though mother waived the issue by failing to renew
her request for in camera interview at trial, the GAL interviewed the children); Brumfield
v. Brumfield, 3d Dist. No. 9-17-35, 2018-Ohio-901, ¶ 59 (although mother's failure to
request in camera interview at the time of trial waived the issue, there could be little impact
in the trial court's failure to interview the child when the child's interests were already
represented by the GAL). For the foregoing reasons, we find the trial court did not commit
plain error when it failed to interview all three children in camera. Mother's fourth
assignment of error is overruled.
{¶ 16} Accordingly, we overrule mother's four assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
BRUNNER and BEATTY BLUNT, JJ., concur.
____________________