Kandel v. Kandel ( 2011 )

[Cite as Kandel v. Kandel, 2011-Ohio-3031.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
ANNE M. KANDEL : Sheila G. Farmer, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 10AP100039
:
:
BRUCE E. KANDEL, et al. : OPINION
Defendants-Appellants
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County
Court of Common Pleas, Domestic
Relations Division, Case No.
2008TC020095
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
PAUL HERVEY MICHAEL C. JOHNSON
P.O. Box 1014 P.O. Box 1007
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
ROBERT H. CYPERSKI
1201 30th Street, N.W., 102B
Canton, Ohio 44709
[Cite as Kandel v. Kandel, 2011-Ohio-3031.]
Edwards, J.
{¶1} Appellant, Bruce E. Kandel, appeals a judgment of the Tuscarawas
County Common Pleas Court awarding appellee Anne Kandel a divorce on the grounds
of adultery and incompatibility, dividing marital property and naming appellee the
residential parent of the children.
STATEMENT OF FACTS AND CASE
{¶2} The parties were married on April 6, 2001. The marriage was appellee’s
first and appellant’s third. They met when appellee was 17 years old and began
working at the trucking company where appellant worked. They have twin daughters
born prematurely on May 3, 2007, who have experienced medical and developmental
problems.
{¶3} Appellee filed the instant complaint for divorce on February 27, 2008. The
case proceeded to trial before a magistrate in December, 2008, and April, 2009.
Following the hearing, the magistrate found that appellant did not have an ownership
interest in Beller-VonKaenel Trucking, but was an employee of the company. The
magistrate further recommended that appellee be named the residential parent of the
children.
{¶4} Both parties filed objections to the magistrate’s report. The trial court
found that appellant did have an ownership interest in Beller-VonKaenal trucking, but
that such ownership interest arose during the marriage, rendering the company marital
property. The court named appellee the residential parent of the children.
{¶5} Appellant assigns six errors on appeal:
Tuscarawas County App. Case No. 10AP100039 3
{¶6} “I. THE TRIAL COURT DECISION THAT OWNERSHIP OF BELLER-
VONKAENEL TRUCKING, OHIO CARRIER, OHIO BROKERAGE AND STRASBURG
LEASING WERE DEEMED TO BE MARITAL PROPERTY IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶7} “II. THE TRIAL COURT COMMITTED ERROR IN DETERMINING THAT
DEFENDANT-APPELLANT BRUCE KANDEL’S BUSINESS REAL ESTATE WAS
ACQUIRED DURING THE MARRIAGE AND THAT THE VALUE WAS SIX HUNDRED
THOUSAND DOLLARS ($600,000.00) FOR WHICH THREE HUNDRED THOUSAND
DOLLARS ($300,000.00) WAS ORDERED TO BE PAID TO ANNE KANDEL. THIS
ORDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND AN ABUSE
OF DISCRETION.
{¶8} “III. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO
BRUCE KANDEL IN ITS DETERMINATION THAT BRUCE KANDEL FAILED TO MEET
THE BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE TO
ESTABLISH THAT THE COMPANIES AND THE REAL ESTATES ARE HIS
SEPARATE PROPERTY.
{¶9} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING
ANNE KANDEL AS THE SOLE RESIDENTIAL PARENT TO BRUCE KANDEL AND
ANNE KANDEL’S TWIN DAUGHTERS, AS THIS IS NOT IN THE BEST INTERESTS
OF THE CHILDREN.
{¶10} “V. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING
ANNE KANDEL AS THE SOLE RESIDENTIAL PARENT WHILE NOT CONSIDERING
A SHARED PARENTING PLAN BETWEEN BRUCE KANDEL AND ANNE KANDEL.
Tuscarawas County App. Case No. 10AP100039 4
{¶11} “VI. BASED UPON THE DEVISION (SIC) OF ASSETS AND PAYMENTS
ORDERED TO BE MADE BY APPELLANT, THE ORDER TO PAY ATTORNEY FEES
WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶12} All of appellant’s assignments of error argue that the judge’s decision is an
abuse of discretion because it’s not supported by the evidence or is against the
manifest weight of the evidence. Appellee notes in her brief that appellant failed to
provide this court with a transcript of the April 24, 2009, hearing before the magistrate
and the April 26, 2010, hearing before the trial court on objections to the magistrate’s
decision.
{¶13} It appears from the trial court’s judgment that the April 26, 2010, objection
hearing was not a hearing at which the court heard additional evidence. However, the
April 24, 2009, hearing was the final day of trial before the magistrate. The transcript
from April 23, 2009, reflects that the court anticipated a few more hours of trial because
there would be redirect examination of appellant, who was on the witness stand at the
end of the day on April 23, 2009, and counsel had indicated that there would be
rebuttal. Tr. 179.
{¶14} The trial court’s judgment recites at the outset that the court reviewed the
record including transcripts of the hearing before the magistrate on 12/20/2008,
4/14/2009, 4/15/2009, 4/16/2009, 4/17/2009, 4/21/2009, and 4/23/2009. The judge
noted that he reviewed the recording of the 4/24/2009 hearing before the magistrate.
The court’s footnote states, “The parties did not request a Transcript of the 4/24/2009
hearing before the Magistrate; however, Civ. R. 53(D)(3)(b)(iii) permits the Court to use
Tuscarawas County App. Case No. 10AP100039 5
alternative technology to review and consider relevant evidence.” Judgment Entry,
September 2, 2010, page 3.
{¶15} Appellant, therefore, was on notice that he had failed to request a
transcript of the April 24, 2009, hearing. While on the docketing statement appellant
indicates that a full transcript would be provided, appellant did not order a transcript of
the April 24, 2009, hearing as required by App. R. 9(B). The notice of filing of the record
sent by the clerk of courts to all counsel of record specifically states, “There were no
additional transcripts filed in this case.”
{¶16} This Court, therefore, does not have a complete record of all the evidence
as presented to the magistrate and reviewed by the trial court judge. The duty to
provide a transcript for appellate review falls upon the appellant. Knapp v. Edwards
Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384. 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. Id.Tuscarawas County App. Case No. 10AP100039 6
{¶17} Appellant’s first, second, third, fourth, fifth and sixth assignments of error
are overruled.
{¶18} The judgment of the Tuscarawas County Court of Common Pleas,
Domestic Relations Division, is affirmed.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0304
[Cite as Kandel v. Kandel, 2011-Ohio-3031.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANNE M. KANDEL :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
BRUCE E. KANDEL, et al., :
:
Defendants-Appellants : CASE NO. 10AP100039
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas, Domestic Relations
Division, is affirmed. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES