Shoenfelt v. Shoenfelt , 2013 Ohio 1500 ( 2013 )

[Cite as Shoenfelt v. Shoenfelt, 2013-Ohio-1500.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
ROBERT M. SHOENFELT,
PLAINTIFF-APPELLANT/
CROSS-APPELLEE, CASE NO. 17-12-08
v.
JENNIFER L. SHOENFELT, OPINION
DEFENDANT-APPELLEE/
CROSS-APPELLANT.
Appeal from Shelby County Common Pleas Court
Domestic Relations Division
Trial Court No. 10-DV-000027
Judgment Reversed and Cause Remanded
Date of Decision: April 15, 2013
APPEARANCES:
Timothy S. Sell and Breann M. Zickafoose for
Appellant/Cross-Appellee
Robert M. Harrelson and William M. Harrelson for
Appellee/Cross-Appellant
Case No. 17-12-08
ROGERS, J.
{¶1} Plaintiff-Appellant/Cross-Appellee, Robert Shoenfelt (“Robert”),
appeals the judgment of the Court of Common Pleas of Shelby County, Domestic
Relations Division, granting a decree of divorce. On appeal, Robert argues that
the trial court erred by: (1) setting the de facto date of the marriage’s termination
as December 2009; (2) failing to order Defendant-Appellee/Cross-Appellant,
Jennifer Shoenfelt (“Jennifer”), to reimburse Robert for his payment of marital
debts between the de facto termination date of the marriage and the date of the
final hearing; (3) determining that Jennifer’s medical school loans were marital
debts; (4) determining that Robert’s unvested deferred compensation assets were
marital; and (5) denying Robert’s request that Jennifer pay half the costs for
transcribing the proceedings. In her cross-appeal, Jennifer contends that the trial
court erred in determining that certain payments by Robert’s brother and friend
were marital debts and in admitting Robert’s listing of the marital assets and debts.
For the reasons that follow, we reverse the trial court’s judgment.
{¶2} Robert and Jennifer were married on May 2, 1987. Their marriage
produced two children. When Robert filed his complaint for divorce on February
12, 2010,1 one of the children was still a minor while the other was already
1
Jennifer also counterclaimed for divorce.
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emancipated. During the pendency of these proceedings, the couple’s minor child
reached majority age.
{¶3} The final hearing occurred on March 13, 2010, March 15, 2010, and
March 16, 2010. The following relevant evidence was adduced at the hearing.
Jennifer left the marital residence in November 2006 after Robert discovered that
she was having an extramarital affair with his cousin. At that time, Jennifer
moved all of her possessions into another apartment. Additionally, Robert
retained counsel to address the possible dissolution of the marriage and discussed
dissolution with Jennifer around the time that she left.
{¶4} After Jennifer’s relocation, the parties attempted to reconcile during
the early part of 2007. The couple had sexual relations on a couple of occasions
and attended three counseling sessions in February and March of 2007, but Robert
decided to discontinue them. Further, Jennifer stayed at the parties’ marital
residence for a couple of days in March 2007 to care for the couple’s minor child
while Robert was out-of-town. During this overnight stay, Robert and Jennifer
discussed the possibility of a full reconciliation, but Robert foreclosed the
possibility. They made no further reconciliation attempts after March 2007.
Indeed, Robert testified that his counsel sent a letter to Jennifer in January 2009
that suggested the dissolution of the marriage.
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{¶5} In regard to the couple’s finances after November 2006, Robert and
Jennifer used different bank accounts. Upon Jennifer’s relocation from the marital
residence, she stopped using the couple’s joint account with US Bank. Instead,
Jennifer used the couple’s Minster bank account and a Chase bank account that
was solely in her name. Initially, Robert used the couple’s US Bank account
before he opened another bank account in his sole name. Both parties had their
respective salaries directly deposited into their separate accounts and used their
salaries to cover their respective living expenses. After November 2006, Robert
used the US Bank joint account to pay Jennifer’s car payment, but she reimbursed
him every month from her separate money. Further, from November 2006
through 2010, Jennifer deposited money into Robert’s account several times to
cover some of the expenses relating to the care of their children.
{¶6} Both Robert and Jennifer indicated that they made significant
decisions without consulting each other after November 2006. Most notably,
Jennifer purchased a home in December 2008. Jennifer offered the following
testimony regarding her decision:
Q: When you purchased your home in December of 2008, did
you discuss with [Robert] the house that you were gonna purchase?
A: Yes, actually I did tell him that I was thinking about buying a
home and –
Q: You told him you were thinking about buying a home. Did –
did you seek his input into which house you were buying?
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A: Why would I do that?
Q: That’s why I’m asking. Did you?
A: No.
Q: So [Robert] had no input into the location of the home?
A: No.
Q: Had no input into the – the home that you purchased?
A: No.
Q: Had no input into the type of financing you secured for the
home?
A: No. Hearing Tr., p. 466-67.
{¶7} At the hearing, both parties advocated for the dates that they wanted
the trial court to adopt as the termination date of the marriage. As a result, the
parties admitted joint exhibits showing asset and debt valuations as of November
2006, which was Robert’s proposed termination date, and as of December 2009,
which was Jennifer’s proposed termination date. In regard to her selection of the
December 2009 date, Jennifer testified as follows:
Q: Do you remember why the [December 2009] date was used
for purposes of seeking values?
A: I believe it was arbitrarily selected by all of us as a potential
date, just different than November 2006 * * *. Hearing Tr., p. 433.
Jennifer further elaborated as follows regarding the December 2009 proposed date:
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Q: And as you indicated yesterday, this was an arbitrary date that
– that was picked, is that correct?
A: By all four of us in a pretrial hearing.
Q: Well, I can – are you suggesting that [Robert] and I took the
position that this marriage ended in December of 2009?
A: I’m suggesting that when we discussed the situation as to how
we would pick what other date, other than November [2006], would
be an attempt to divide assets and liabilities, both of you agreed, all
four of us agreed together, in a pretrial hearing, okay let’s – let’s
throw some dates around, which we did. And we all came to the
conclusion that for the sake of simplicity, we would have to find
another date, and we agreed on December, 2009, because there were
some definite shifts as how things were handled financially after that
point or that point in time.
Q: All right. So you’re – you’re backing off of your statement
that was an arbitrary date as selected from your testimony from
yesterday?
A: No, I just endorsed that right now. Hearing Tr., p. 490-91.
{¶8} After the hearing, both Robert and Jennifer filed their proposed
findings of fact and conclusions of law, in which both advocated for their
proposed termination dates. The magistrate issued his decision on June 6, 2011.
He framed the issue regarding the termination date as “whether equity requires this
court to select the earlier date of November [2006], as requested by [Robert], or
the later date of December, 2009, as requested by Jennifer.” (Docket No. 94, p. 6).
The magistrate resolved this issue in favor of Jennifer and selected December
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2009 as the termination date of the marriage. His reasoning for this selection was
as follows:
The Court should find that the marriage of the parties ended in
December, 2009, the proposed date which is closer to the date of the
final hearing. The Court may also wish to consider the December,
2009, date as a more reliable de facto date of termination of the
marriage. The December, 2009, date is more closely associated with
the date when [Robert] filed his Complaint for divorce, and when the
parties both realized that divorce proceedings were imminent.”
(Docket No. 94, p. 8).
{¶9} Robert objected to the magistrate’s decision on June 17, 2011 on a
variety of grounds, including the magistrate’s selection of December 2009 as the
termination date of the marriage. He also requested the transcription of the
hearing before the magistrate. Jennifer likewise objected to the magistrate’s
decision on a variety of grounds. Her objections, along with a request for a
hearing transcript, were filed on June 20, 2011. On December 6, 2011, Robert
filed a motion for the parties to share the expense of the hearing transcript’s
production. The trial court denied Robert’s motion on the grounds that this cost
was “a litigation expense, for which each party bears their own expenditures.”
(Docket No. 133).
{¶10} On December 19, 2011, the trial court overruled Robert’s objection
regarding the magistrate’s selection of December 2009 as the termination date of
the marriage. The trial court’s decision included the following explanation:
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In a thoughtful and comprehensive conclusion, the Magistrate
adopted the December 2009 date as the termination date of the
marriage. The Court would note the transcript supports the factual
findings of the Magistrate and this Court would independently agree
with the conclusion reached by the Magistrate.
The Court would find using the final hearing date in this case is
inequitable and would adopt and use the December 2009 date as the
date of the defacto [sic] termination of the marriage and use this date
for the distribution and valuation of assets and liabilities as those
amounts were provided to the Court. (Docket No. 133, p. 2).
The trial court issued a decree of divorce on February 21, 2012. The decree uses
December 2009 as the termination date of the marriage and it distributes the
marital assets and debts based on that date. The trial court also ordered that the
parties share the costs of this action.
{¶11} It is from this judgment that both Robert and Jennifer appeal,
presenting the following assignments and cross-assignments of error for our
review.
Robert’s Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING DECEMBER OF 2009 AS THE DE FACTO
DATE OF TERMINATION OF THE MARRIAGE.
Robert’s Assignment of Error No. II
THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING THAT APPELLEE WAS NOT
RESPONSIBLE FOR REIMBURSEMENT TO APPELLANT
FOR THE MARITAL DEBTS PAID BY APPELLANT FROM
THE DE FACTO DATE OF TERMINATION OF THE
MARRIAGE UNTIL THE DATE OF THE FINAL HEARING.
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Robert’s Assignment of Error No. III
THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING THAT APPELLEE’S MEDICAL SCHOOL
LOANS WERE MARITAL DEBTS.
Robert’s Assignment of Error No. IV
THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING THAT APPELLANT’S UNVESTED
DEFERRED COMPENSATION ASSETS WERE MARITAL
ASSETS.
Robert’s Assignment of Error No. V
THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING THAT APPELLANT IS NOT RESPONSIBLE
FOR ONE HALF OF THE COSTS OF TRANSCRIPTION.
Jennifer’s Cross-Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING THAT THE TWO PAYMENTS, TOTALING
$70,000, FROM APPELLANT-PLAINTIFF’S BROTHER AND
APPELLANT-PLAINTIFF’S FRIEND WERE MARITAL
DEBTS TO BE EVENLY DIVIDED.
Jennifer’s Cross-Assignment of Error No. II
THE TRIAL COURT ABUSED ITS DISCRETION IN
ADMITTING APPELLANT-PLAINTIFF’S EXHIBITS 1 AND
1A THROUGH 48 AND 48A WHEN SUCH ADMISSION
MATERIALLY PREJUDICED JENNIFER BECAUSE THEY
DID NOT FAIRLY REPRESENT THE ALLEGED MARITAL
DEBTS.
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{¶12} Due to the nature of the assignments of error, we elect to address
Robert’s second, third, and fourth assignments of error, as well as both of
Jennifer’s cross-assignments of error, together.
Robert’s First Assignment of Error
{¶13} In his first assignment of error, Robert argues that the trial court
improperly set December 2009 as the de facto termination date of the marriage.
We agree.
Standard of Review
{¶14} A trial court’s setting of a de facto termination date is reviewed for
an abuse of discretion. Eggeman v. Eggeman, 3d Dist. No. 2-04-06, 2004-Ohio-
6050, ¶ 9. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18,
citing Black’s Law Dictionary 11 (8th Ed.2004). When applying the abuse of
discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
De Facto Termination Dates Under R.C. 3105.171(A)(2)
{¶15} R.C. 3105.171(A)(2) governs the setting of a marriage’s termination
date and it provides, in pertinent part, as follows:
(2) “During the marriage” means whichever of the following is
applicable:
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(a) Except as provided in division (A)(2)(b) of this section, the
period of time from the date of the marriage through the date of the
final hearing in an action for divorce * * *;
(b) If the court determines that the use of either or both of the dates
specified in division (A)(2)(a) of this section would be inequitable,
the court may select dates that it considers equitable in determining
marital property.
Under the plain terms of the statute, the final hearing date is the presumptive
termination date of the marriage. Bowen v. Bowen, 132 Ohio App.3d 616, 630
(9th Dist. 1999). But, if using the final hearing date would be inequitable, a trial
court can vary from this presumption and select an alternative termination date
that is more equitable. Fisher v. Fisher, 3d Dist. No. 7-01-12 (Mar. 22, 2002).
Although the decision to select an alternative termination date rests within the
sound discretion of the trial court, id., its discretion is not unlimited, see Berish v.
Berish, 69 Ohio St.2d 318, 321 (1982) (stating that a trial court is authorized to use
a de facto termination date under R.C. 3105.171(A)(2) provided that it is
“reasonable under the facts and circumstances presented in a particular case”);
Boggs v. Boggs, 5th Dist. No. 07 CAF 02 0014, 2008-Ohio-1411, ¶ 66 (stating that
varying the presumed termination date is only appropriate where the evidence
“clearly and bilaterally shows that it is appropriate based on the totality of the
circumstances”).
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{¶16} In Dill v. Dill, 179 Ohio App.3d 14, 2008-Ohio-5310 (3d Dist.), we
stated that trial courts should consider the following non-exhaustive list of factors
when setting de facto termination dates:
(1) Whether the parties separated on bad terms;
(2) Whether the parties believed the marriage had ended before the
hearing;
(3) Whether the parties cohabitated with others during the separation;
(4) The parties’ degree of involvement during the separation;
(5) Whether the parties lived as husband and wife;
(6) Whether the parties maintained separate residences;
(7) Whether the parties utilized different bank accounts;
(8) Whether the parties attempted to reconcile;
(9) Whether the parties retained counsel; and
(10) Whether the parties vacationed separately or attended social functions
together. Id. at ¶ 11.
We further noted that “[n]o one factor is dispositive; rather the trial court must
determine the relative equities on a case-by-case basis.” Id.
{¶17} Our decision in Dill addressed a factual context in which the parties
had been separated for approximately ten years before the final hearing date.
Despite this extended period of time, the trial court set the final hearing date as the
termination date of the marriage. We found that this decision was an abuse of
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discretion and consequently remanded the matter for the trial court to determine an
equitable de facto termination date based on the above factors. Id. at ¶ 47.
The Trial Court’s De Facto Termination Date
{¶18} Here, a review of the trial court’s order regarding the de facto
termination date of the marriage reveals two flaws. First, the magistrate framed
the issue as “whether equity requires this court to select the earlier date of
November [2006] as requested by [Robert], or the later date of December, 2009, as
requested by Jennifer.” (Docket No. 94, p. 6). Second, the magistrate selected the
December 2009 date for three reasons: (1) it was closer to the date of the final
hearing; (2) it was closer to the date that Robert filed his complaint; and (3) it was
the date when the parties realized that divorce was imminent. Both of these flaws
render the trial court’s decision an abuse of discretion.
{¶19} The issue before the trial court was not which of the dates suggested
by the parties was an appropriate de facto termination date. Rather, R.C.
3105.171(A)(2) requires that the trial court engage in a two-part analysis. First, it
must consider whether using the final hearing date as the termination date of the
marriage would be equitable. Second, if using the final hearing date would be
inequitable, it must determine, based on the Dill factors, a previous date that is
both equitable to the parties and reasonable based on the evidence adduced at trial.
Berish, 69 Ohio St.2d at 321; Dill, 179 Ohio App.3d 14, 2008-Ohio-5310, at ¶ 47;
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Boggs, 2008-Ohio-3411, at ¶ 66. When engaging in this analysis, the trial court is
not constrained by the self-serving suggested dates of the parties. E.g., Wei v.
Shen, 12th Dist. No. CA2002-12-300 (Nov. 24, 2003) (affirming trial court’s
decision to not use agreed termination date proposed by the parties because
evidence adduced at trial did not support the agreed upon date).
{¶20} The trial court properly engaged in the first step of this analysis.
However, it failed to appropriately handle the second step because its reasoning
for the December 2009 date is not in accord with our decision in Dill or
appropriate considerations of equity. In Dill, we did not list the temporal
proximity of the final hearing date and the date of the complaint’s filing as factors
that trial courts should consider when setting a de facto termination date. And,
indeed, we see little reason why equity requires that such factors be considered.
R.C. 3105.171(A)(2)(b) is concerned with the selection of a de facto termination
date that appropriately reflects when the parties’ marriage was effectively over.
See Mantle v. Sherry, 10th Dist. No. 02AP-286, 2003-Ohio-6058, ¶ 11 (stating that
trial courts should “look at the actual nature of the parties’ relationship” when
setting a de facto termination date); Harris v. Harris, 11th Dist. No. 2002-A-81,
2003-Ohio-5350, ¶ 11 (noting that trial courts generally set de facto termination
dates where “the parties separate, make no attempt at reconciliation, continually
maintain separate residences and/or separate bank accounts”). It is not concerned
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with ensuring that trial courts select de facto termination dates that are closer to
the presumed date contained in R.C. 3105.171(A)(2)(a) or the date of the
complaint’s filing.
{¶21} The trial court’s reliance on Robert’s and Jennifer’s alleged belief
that divorce proceedings were imminent in December 2009 is also inappropriate.
First, such a finding that this belief developed in December 2009 is not supported
by the record. Jennifer testified that she was aware that Robert had retained legal
counsel in November 2006 and both parties testified that they had conversations
about dissolution at that time. The parties also indicated that Robert’s legal
counsel sent correspondence to Jennifer in January 2009 that suggested
dissolution. In light of this evidence, we are unable to agree with the trial court’s
finding that the parties did not first realize the dissolution of the marriage was
imminent until December 2009. Even if the trial court’s fact finding in this regard
was supported by the record, it is still immaterial to the ultimate decision of when
to set the termination date under Dill.
{¶22} In addition to improperly relying on the above factors, the trial court
failed to account for a variety of facts that suggested the de facto termination date
of the marriage was before December 2009. The evidence adduced at trial
established that the parties had maintained separate residences since November
2006. Although Robert and Jennifer tried to reconcile in early 2007, they made no
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attempts after March 2007. Further, since November 2006, Robert and Jennifer
have used separate bank accounts and they have only shared expenses relating to
the care of their children. They have vacationed separately and they have made
significant life decisions without consulting each other. Indeed, when asked why
she did not consult Robert before purchasing her house in December 2008,
Jennifer responded, “Why would I do that?” Hearing Tr., p. 466. Finally, Jennifer
herself characterized the December 2009 date as “arbitrarily selected” as opposed
to reflective of a change in her marital relationship with Robert. Hearing Tr., p.
433.
Jennifer’s Arguments
{¶23} Jennifer offers two main arguments in support of the trial court’s
order. First, she argues that the trial court appropriately found that the December
2009 was the termination date of the marriage because that date was more
appropriate than the November 2006 date advocated for by Robert. As noted
above, the issue for the trial court to resolve was not which of the suggested dates
was more appropriate, but rather what date, based on the consideration of the Dill
factors, was equitable and reasonable based on the facts.
{¶24} Jennifer also contends that the parties had the same level of financial
entanglement after November 2006, indicating that December 2009 was the
appropriate de facto termination date. This contention has two significant
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deficiencies. First, it is partly based on Jennifer’s understanding of the issue as
whether November 2006 or December 2009 was the appropriate termination date.
As discussed above, this framing of the issue was improper.
{¶25} Second, Jennifer’s contention has a tenuous basis in the record.
Jennifer seizes on Robert’s testimony that little changed financially between
November 2006 and December 2006 as it related to the couple’s finances. But,
the record reveals that the parties’ finances were not commingled after November
2006 to the extent suggested by Jennifer. While Robert did pay some bills that
Jennifer incurred,2 such as her car payment, she reimbursed him for those
payments from her separate funds. Further, both paid their separate living
expenses, including those relating to their separate residences, and used separate
accounts. This is an entirely different arrangement from the one that existed
before November 2006, that was described in the following testimony by Jennifer:
Q: And * * * both of your incomes, whatever they were, were
going into the marital pot, correct?
A: Yes. Hearing Tr., p. 388.
In light of this evidence, we cannot agree with Jennifer’s contention that the
parties’ financial affairs after November 2006 necessitated a de facto termination
date of December 2009.
2
We also note that Robert and Jennifer filed joint tax returns for the 2006 and 2007 tax years.
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{¶26} In sum, the trial court did not properly engage in the analysis
mandated by R.C. 3105.171(A)(2) for the setting of a de facto marriage
termination date. Rather than focusing on the self-serving arguments of the parties
and the temporal proximity of the divorce filing and the final hearing date, the trial
court was required to focus on what de facto termination date was equitable based
upon a consideration of the factors we announced in Dill. The trial court’s failure
to perform this analysis amounts to an abuse of discretion and we consequently
remand this matter for the trial court to determine an equitable termination date
that is properly based on the Dill factors and the evidence presented.
{¶27} Accordingly, we sustain Robert’s first assignment of error.
Robert’s Second, Third, and Fourth Assignments of Error and
Jennifer’s Cross-Assignments of Error
{¶28} Since Robert’s second, third, and fourth assignments of error, as well
as Jennifer’s first and second cross-assignments of error relate to the valuation and
division of the marital assets and debts, our resolution of Robert’s first assignment
of error renders them moot. Accordingly, we decline to address them. See App.R.
12(A)(1)(c).
Robert’s Fifth Assignment of Error
{¶29} In his fifth assignment of error, Robert contends that the trial court
erred in requiring that he pay the full amount of money charged for the
transcription of the proceedings in this matter. We agree.
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{¶30} We preliminarily note that although Robert stylized his motion as a
“motion to share expense of transcript,” we treat it as a motion to tax the transcript
as costs. Civ.R. 54(D) provides that “[e]xcept when express provision therefor is
made either in statute or in these rules, costs shall be allowed to the prevailing
party unless the court otherwise directs.” We review a trial court’s decision to
assess a cost for an abuse of discretion. Holmes Cty. Bd. of Commrs. v.
McDowell, 169 Ohio App.3d 120, 2006-Ohio-5017, ¶ 43 (5th Dist.).
{¶31} To determine whether an item should be taxed as a cost pursuant to
Civ.R. 54(D), we engage in a two-part inquiry. “The first step of the inquiry is to
determine whether an expense is an item properly taxable as a cost; this is
followed by a decision as to whether the cost should be taxable in the particular
case at bar.” Jones v. Pierson, 2 Ohio App.3d 447 (8th Dist. 1981), paragraph one
of the syllabus. In Zittowksi v. Zittowski, 70 Ohio App.3d 484 (11th Dist. 1990),
the wife filed an objection to the magistrate’s decision, which required that she file
a transcript of the proceedings. The wife moved that the transcript cost be taxed as
costs of the action, but the trial court denied her motion. The Court of Appeals,
applying the Jones test above, reversed on the grounds “[t]he transcript was a
necessary litigating expense and not a mere personal expense; it was neither an
unusual nor unreasonable expense and, thus, the trial court abused its discretion in
denying [the wife’s motion].” Id. at 487; see also Barran v. Kinas, 8th Dist. No.
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85085, 2005-Ohio-2002, ¶ 17 (reversing trial court’s denial of motion to tax
transcription fees as costs of action because transcript had to be filed along with
objections to magistrate’s decision).
{¶32} The same facts exist here since both Robert and Jennifer objected to
the magistrate’s decision, which required that they file the transcript of the
proceedings before the magistrate. Civ.R. 53(D)(3)(b)(iii). Under Zittowski, the
costs of the transcription were therefore necessary and recoverable as costs
pursuant to Civ.R. 54(D). As a result, the trial court abused its discretion in
denying Robert’s motion and the cost of transcription should be taxed as costs of
this action.
{¶33} Further, we note that significant inequity would occur if the parties
did not share in the costs of the transcription. A review of the record reveals that
both Robert and Jennifer objected to the magistrate’s decision and requested the
production of the transcript. Moreover, in her original set of objections, Jennifer
“request[ed] leave of court to amend and supplement said objections once the
transcript of the hearing is filed with the Court.” (Docket No. 102, p. 8). Indeed,
upon the transcript’s filing, Jennifer filed supplemental objections to the
magistrate’s decision. Based on these filings, Jennifer benefitted from the
production of the hearing transcript since it allowed her to object to the
magistrate’s decision and to file supplemental objections. It would be inequitable
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for her to receive these benefits and yet not have to share in the costs simply
because Robert was the first party to object and request the transcript.
{¶34} To support the trial court’s denial of the cost sharing, Jennifer cites to
Loc.R. 32 of the Court of Common Pleas of Shelby County. The rule provides
that “[t]he compensation of reporters for making transcripts and copies shall be
paid forthwith to the reporter by the party for whose benefit the same is made.”
Loc.R. 32 of the Court of Common Pleas of Shelby County, General Division.
However, the record plainly reveals that the transcripts were made for both
Robert’s benefit and Jennifer’s benefit since they both filed objections to the
magistrate’s decision. Consequently, Loc.R. 32 does not mandate that only Robert
pay for the costs of transcription.
{¶35} Accordingly, we sustain Robert’s fifth assignment of error.
{¶36} Having found error prejudicial to Robert in the particulars assigned
and argued in Robert’s first and fifth assignments of error, we reverse the trial
court’s judgment and remand this matter for further proceedings consistent with
this opinion.
Judgment Reversed
And Cause Remanded
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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