Berry-Silverman v. Silverman , 2023 Ohio 824 ( 2023 )

[Cite as Berry-Silverman v. Silverman, 2023-Ohio-824.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MELISSA BERRY-SILVERMAN JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 21 CAF 12 0065
ANDREW SILVERMAN
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 20 DRB 07 0346
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 16, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CHRISTOPHER L. TROLINGER ANDREW S. GROSSMAN
ELIZABETH R. ROBERTO JOHN H. COUSINS IV
175 S. 3rd Street MARGARET M. HUCK
Suite 720 GROSSMAN LAW OFFICES
Columbus, Ohio 43215 32 W. Hoster Street, Suite 100
Columbus, Ohio 43215
Delaware County, Case No. 21 CAF 12 0065 2
Wise, J.
{¶1} Plaintiff-Appellant Melissa Berry-Silverman appeals the November 23, 2021
judgment entry of the Delaware County Court of Common Pleas, Domestic Relations
Division. Appellee is Andrew Silverman.
FACTS AND PROCEDURAL HISTORY
{¶2} On July 2, 2020, Appellant filed a divorce action against Appellee.
{¶3} On August 24, 2021, the action proceeded to a trial before a magistrate in
the Delaware County Court of Common Pleas, Domestic Relations Division.
{¶4} On September 28, 2021, the magistrate issued findings of facts and
conclusions of law.
{¶5} On October 13, 2021, the trial court filed a Certification of Audio Transcript,
providing the audio disk of the trial to Appellant.
{¶6} On October 21, 2021, Appellant filed objections pursuant to Civ.R.
53(D)(3)(b). In the objections, Appellant sought leave to file an amended memorandum
in support of the objections with citations to the written transcript once available.
{¶7} Appellant informed the trial court that the transcript had been ordered.
{¶8} On November 19, 2021, the court reporter informed Appellant the trial
transcript was prepared. PRI, Inc. made a request of Appellant for payment to have the
transcript bound and filed. Appellant made payment.
{¶9} On November 23, 2021, the trial court issued a judgment entry overruling
all of Appellant’s objections to the magistrate’s findings of facts and conclusions of law
before PRI, Inc. filed the transcript.
Delaware County, Case No. 21 CAF 12 0065 3
{¶10} On December 6, 2021, Appellant filed a Motion for Relief from Judgment
pursuant to Civ.R. 60(B).
{¶11} On December 11, 2021, Appellant filed a Motion to Admit Additional
Evidence, pursuant to Civ.R. 53(D)(4)(d).
ASSIGNMENTS OF ERROR
{¶12} Appellant filed a timely notice of appeal and herein raises the following
Assignments of Error.
{¶13} “I. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE
PLAINTIFF-APPELLANT, IN AN ABUSE OF ITS DISCRETION, BY OVERRULING HER
OBJECTIONS FILED PURSUANT TO CIVIL RULE 53.
{¶14} “II. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE
DEFENDANT-APPELLANT, BY NOT GRANTING THE PLAINTIFF-APPELLANT’S
MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60(B).”
I.
{¶15} In her first Assignment of Error, Appellant argues the trial court abused its
discretion by overruling Appellant’s objections to the magistrate’s findings of facts and
conclusions of law without the filing of the written transcript. We disagree.
{¶16} Civ.R. 53(D)(3)(b)(iii) states:
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,
Delaware County, Case No. 21 CAF 12 0065 4
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.
{¶17} This Court has previously held that if an appellant fails to file a transcript of
the trial proceedings with his objections to the magistrate’s findings of fact, “the factual
findings of the magistrate are deemed established and may not be attacked on appeal.”
Doane v. Doane, 5th Dist. Guernsey No 00CA21, 2001 WL 474267, *3 (May 2, 2001).
Accordingly, we review whether the trial court abused its discretion in reaching specific
legal conclusions. Id. The abuse of discretion standard is more than an error of judgment;
it implies the court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶18} Delaware Domestic Local Court Rule 27.04(E) provides, in pertinent part:
“Any party who files an objection shall have 14 days to file a supplemental brief after the
filing of the transcript with the court.”
{¶19} In the case sub judice, Appellant filed her objections on October 21, 2021.
According to Civ.R. 53(D)(3)(b)(iii), the transcript had to be filed by November 20, 2021.
The record fails to show a transcript was filed with the court at this time, or that Appellant
requested an extension to file the transcript. The trial court overruled Appellant’s
objections because a transcript was not timely filed. Delaware Domestic Local Court
Rule 27.04(E) grants a party 14 days to file a supplemental brief after the filing of the
Delaware County, Case No. 21 CAF 12 0065 5
transcript. This rule presupposes that a transcript has appropriately been filed with the
trial court. As no transcript was ever filed, the additional fourteen days to file a
supplemental brief is never triggered. As such, the trial court did not abuse its discretion
in overruling Appellant’s objections to the magistrate’s decision.
{¶20} Appellant’s first Assignment of Error is overruled.
II.
{¶21} Appellant argues in her second Assignment of Error the trial court erred by
failing to grant Appellant’s Motion for Relief from Judgment. However, Appellant asserts
in her reply brief that she has withdrawn this assignment of error. Accordingly, we need
not address it.
{¶22} For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, Delaware County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.
JWW/br 0308
Delaware County, Case No. 21 CAF 12 0065 6