Swedlow v. Riegler , 2013 Ohio 5562 ( 2013 )

[Cite as Swedlow v. Riegler, 2013-Ohio-5562.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
RONALD M. SWEDLOW C.A. No. 26710
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RADMILLA J. RIEGLER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 2004-09-3594
DECISION AND JOURNAL ENTRY
Dated: December 18, 2013
HENSAL, Judge.
{¶1} Plaintiff-Appellant, Ronald M. Swedlow, appeals from the judgment of the
Summit County Court of Common Pleas, Domestic Relations Division. For the reasons set forth
below, this Court affirms.
I.
{¶2} Mr. Swedlow and Radmilla Riegler divorced in 2004. Both Mr. Swedlow and
Mrs. Riegler were named the residential parent of the parties’ minor child pursuant to a shared
parenting plan wherein the child lived with each parent on alternating weeks. Each parent also
had midweek parenting time with the child for two hours on the weeks that the child did not
reside with him or her. Due to the parties’ “nearly equal earnings” and the fact that the child
resided with each parent 50 percent of the time, neither parent was obligated to pay child
support. Both parents also had the right to make medical decisions for the child after consulting
with the other parent.
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{¶3} In September 2011, Mrs. Riegler filed a motion to reallocate parental rights and
responsibilities and to modify the visitation schedule, child support order and tax dependency
exemption. Mrs. Riegler sought, inter alia, to terminate the shared parenting plan, to be
designated as the sole residential custodian, and to require that Mr. Swedlow pay child support.
In a Magistrate’s Order dated February 17, 2012, the court scheduled the matter for a final
evidentiary hearing to be held on July 26, 2012.
{¶4} On July 10, 2012, while represented by counsel, Mr. Swedlow filed a pro se
motion to continue the evidentiary hearing on the basis that he needed time to seek different
counsel. The court denied the motion the same day it was filed. Thereafter, Mr. Swedlow’s
attorney sought the court’s permission to withdraw from the case, which was granted on July 20,
2012. On July 23, 2012, Mr. Swedlow filed a second motion to continue the evidentiary hearing,
which was also denied.
{¶5} The case proceeded to an evidentiary hearing before a magistrate over two
separate days. On September 18, 2012, a magistrate’s decision and judgment entry adopting the
decision was issued that: (1) modified the shared parenting plan to discontinue the alternating
week schedule during the school year, but ordered it to be used during the summer; (2) allowed
Mr. Swedlow overnight companionship time during the school year on the first three full
weekends of every month plus midweek companionship time during the fourth and fifth weeks
of the month; (3) gave Mrs. Riegler the right to make the final decision if the parties disagreed
about a medical decision involving the child; (4) ordered Mr. Swedlow to participate in anger
management counseling and to supervise the child’s interactions with neighborhood children
when she was in his care; (5) ordered that the child continue in counseling and be assessed for
ADHD; and (6) ordered Mr. Swedlow to pay child support in the amount of $186.74 per month,
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pay 27% of any unreimbursed healthcare costs and allowed Mrs. Riegler to claim the child as a
dependent for income tax purposes.
{¶6} Mr. Swedlow filed timely objections to the magistrate’s decision and a
supplemental brief in support of his objections. While he filed a praecipe requesting that the
court reporter prepare a transcript of the evidentiary hearing, the record does not reflect that the
transcript was ever prepared and filed. Mr. Swedlow’s supplemental brief incorporated an
unsworn “[a]ffidavit” that alleged to set forth what transpired during the hearing in lieu of a
transcript. The trial court overruled Mr. Swedlow’s objections and found that the “[a]ffidavit”
was neither a proper affidavit nor the proper substitute for a transcript. Mr. Swedlow filed a
timely appeal of the judgment entry that overruled his objections and raises six assignments of
error. This Court combines several of Mr. Swedlow’s assignments of error to facilitate our
analysis.
II.
STANDARD OF REVIEW
{¶7} “This Court generally reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion.” Young v. Young, 9th Dist. Summit No. 25640, 2011–Ohio–
4489, ¶ 5. An abuse of discretion “implies that the trial court’s attitude [was] unreasonable,
arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
“Although the trial court has discretion when finding facts and applying those facts to the law,
the trial court commits an error of law if it does not follow the law.” Foster v. Foster, 9th Dist.
Wayne No. 09CA0058, 2010–Ohio–4655, ¶ 6. Issues of law are reviewed de novo. Butler v.
Butler, 9th Dist. Summit No. 22087, 2004–Ohio–7164, ¶ 11.
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ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING FATHER A REASONABLE
OPPORTUNITY TO OBTAIN NEW COUNSEL BEFORE EVIDENTIARY
HEARINGS COMMENCED, DESPITE FATHER’S REALIZATION AND
PLEAS THAT COUNSEL HAD FAILED TO PROVIDE EFFECTIVE
REPRESENTATION.
{¶8} Mr. Swedlow argues that the trial court erred in not granting his motion for a
continuance of the evidentiary hearing to allow him time to obtain new counsel. This Court
disagrees.
{¶9} The decision to grant or deny a motion for a continuance is within the trial court’s
discretion. Carpenter v. Carpenter, 9th Dist. Medina No. 10CA0044-M, 2011-Ohio-2321, ¶ 7,
quoting Carrico v. Carrico, 9th Dist. Lorain No. 08CA009394, 2009-Ohio-668, ¶ 3.
In determining whether the trial court abused its discretion by denying a motion
for a continuance, this court must ‘apply a balancing test, weighing the trial
court’s interest in controlling its own docket, including facilitating the efficient
dispensation of justice, versus the potential prejudice to the moving party.’
Kocinski v. Kocinski, 9th Dist. Lorain No. 03CA008388, 2004-Ohio-4445, ¶ 10, quoting Burton
v. Burton, 132 Ohio App.3d 473, 476 (3rd Dist.1999). In evaluating whether the trial court
abused its discretion, this Court:
should note * * * the length of the delay requested; whether other continuances
have been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for legitimate
reasons or whether it is dilatory, purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the request for a continuance;
and other relevant factors, depending on the unique facts of each case.
State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).
{¶10} These proceedings were initiated by Mrs. Riegler’s filing of a motion on
September 26, 2011. In an entry filed February 17, 2012, the matter was set for an evidentiary
hearing to be held on July 26, 2012. Mr. Swedlow filed his first pro se motion for a continuance
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on July 10, 2012; 16 days prior to the hearing and approximately two weeks after a settlement
conference was held. He sought a “reasonable amount of time” to obtain new counsel. The
magistrate denied the request without any explanation in an entry filed the same day as the
motion. This Court notes that Mr. Swedlow was represented by counsel at the time he filed his
first motion for a continuance. Mr. Swedlow’s counsel subsequently moved to withdraw as his
attorney due to the filing of the motion and the arguments contained therein. Three days before
the evidentiary hearing, Mr. Swedlow filed his second pro se motion for a continuance
requesting that the hearing be continued because the court permitted his prior counsel to
withdraw. The magistrate again denied the request without any explanation.
{¶11} Balancing the trial court’s interest with the potential prejudice to Mr. Swedlow,
this Court’s review of the record does not indicate that the trial court abused its discretion in
denying Mr. Swedlow’s motions. There is no evidence in the record that Mr. Swedlow had
either sought or received any prior continuances. With regard to the first motion for a
continuance, the record reflects that Mr. Swedlow was represented by counsel at the time it was
filed. His motion did not advise the court how long of a continuance he required. Despite
knowing over two weeks prior to the hearing that the matter would not be continued, there is no
evidence that Mr. Swedlow attempted to secure the services of alternate counsel and instead
chose to represent himself. He filed a second motion for a continuance just three days before
trial in a matter that was scheduled over five months earlier and was pending approximately ten
months. Finally, this Court notes that the evidentiary hearing occurred over two days; on July
26, 2012 and September 17, 2012. Mr. Swedlow thus had additional time between the two
hearing dates in which to obtain new counsel to represent him at the conclusion of the hearing.
There is no evidence in the record that he ever hired counsel, nor did he proffer or allege that he
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had attempted to do so. Based on the foregoing, the trial court did not abuse its discretion by
denying Mr. Swedlow’s motions for a continuance. His first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO SANCTION A
REASONABLY EQUAL TIME AND OPPORTUNITY FOR FATHER TO
QUESTION THE VERACITY OF MOTHER’S TESTIMONY VIA LIMITING
HIS TIME ALLOWED FOR CROSS EXAMINATION.
{¶12} Mr. Swedlow next argues that the magistrate unreasonably limited the time
scheduled for the evidentiary hearing, which did not afford him equal time to cross-examine Mrs.
Riegler, and forced him to cut short his testimony. He also maintains that Mrs. Riegler
purposely drew out the proceedings so as to deprive him of an opportunity to present his case.
{¶13} Although he filed a praecipe directing that the court reporter prepare a
transcript, Mr. Swedlow failed to provide a transcript of the proceedings for the trial court to
review in ruling on his objections. He maintains that, due to his indigent status, he could not
afford to have a transcript prepared. Mr. Swedlow attempted to remedy this deficiency in the
trial court by incorporating an unsworn “affidavit” that purported to set forth what transpired
during the hearing. The trial court found that the “affidavit” did not meet the formal
requirements of such a document and could not be substituted for a transcript. In ruling on his
objections, the trial court found that the magistrate’s findings of fact were correct and overruled
Mr. Swedlow’s objections. Mr. Swedlow filed a “Statement of the Evidence” pursuant to
Appellate Rule 9(C) in this Court, which was stricken from the record due to noncompliance
with the rule.1
1
Mr. Swedlow filed his statement of evidence pursuant to the version of App.R. 9(C) that
was effective July 1, 2011. App.R. 9(C) was subsequently amended effective July 1, 2013, and
provides further guidance about when a party may file a statement in lieu of a transcript.
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{¶14} In order to resolve Mr. Swedlow’s assignment of error, it is necessary for this
Court to have a transcript of the evidentiary hearing proceedings or an affidavit comporting with
Civil Rule 53(D)(3)(b)(iii) if a transcript is not available so as to ascertain whether the trial court
committed any error. “It is an appellant’s duty to ensure that the record, or the portion necessary
for review on appeal, is filed with the appellate court.” Shumate v. Shumate, 9th Dist. Lorain
No. 09CA009707, 2010-Ohio-5062, ¶ 6, citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,
19 (1988). See also App.R. 9(B)(1); App.R. 10(A); Loc.R. 5(A). “The duty to provide a
transcript for appellate review falls upon the appellant. This is necessarily so because an
appellant bears the burden of showing error by reference to matters in the record.” Shumate at ¶
6, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
{¶15} “Where the transcript of a hearing is necessary to resolve assignments of error,
but such transcript is missing from the record, the reviewing court has ‘no choice but to presume
the validity of the lower court’s proceedings, and affirm.’” Id. at ¶ 9, quoting Knapp at 199.
When a party objects but does not provide the trial court with the transcripts
necessary to review the objections, there are serious consequences for appellate
review. In that situation, this Court’s review is ‘limited to determining whether
the trial court abused its discretion in adopting, rejecting, or modifying the
magistrate’s decision[.]’
Lakota v. Lakota, 9th Dist. Medina No. 10CA0122-M, 2012-Ohio-2555, ¶ 7, quoting Furlong v.
Davis, 9th Dist. Summit No. 24703, 2009-Ohio-6431, ¶ 30.
{¶16} Given the limited record, this Court is unable to conclude that the trial court
abused its discretion in overruling Mr. Swedlow’s objection. His second assignment of error is
overruled.
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ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN ITS ORDER CONFIRMING THE
MAGISTRATE’S DECISION GRANTING FINAL SAY IN MEDICAL
DECISION MAKING REGARDING THE MINOR CHILD TO THE MOTHER,
AS THIS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
PRODUCED DURING TRIAL, WHICH DEPICTS A PATTERN OF POOR
DECISION MAKING IN THIS AREA BY THE MOTHER.
{¶17} In Mr. Swedlow’s third assignment of error, he argues that the trial court abused
its discretion in modifying the shared parenting plan by giving Mrs. Riegler the right to make
any final medical decision for the child as such a finding was against the manifest weight of the
evidence. He does not, however, develop any argument on this point. Rather, he argues that he
was denied any meaningful opportunity to support his claims of error when the trial court refused
to consider the “affidavit” he included in his supplemental brief. We disagree.
{¶18} Civil Rule 53(D)(3)(b)(iii) requires that a party objecting to a factual finding in a
magistrate’s decision must provide a transcript of the evidence or “an affidavit of that evidence if
a transcript is not available.” Mr. Swedlow does not dispute that his “affidavit” was neither
signed nor sworn in front of a notary public, but rather argues that the trial court’s action was
discriminatory against him as he is pro se and indigent. “By definition, an affidavit must be
‘confirmed by oath or affirmation of the party making it [and] taken before a person having
authority to administer [the] oath or affirmation.’” In re Disqualification of Pokorny, 74 Ohio
St.3d 1238, 1238 (1992), quoting Black’s Law Dictionary 54 (5th Ed.1979). A document that is
not sworn before an officer and that does not comply with all the legal requisites is not an
affidavit. Id. See also Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-
941, 2011-Ohio-3314, ¶ 12 (“An affidavit is a sworn statement, made under penalty of
perjury.”).
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{¶19} Accordingly, the trial court did not err in excluding Mr. Swedlow’s “affidavit”
as evidence. His third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN SUMMARILY CONFIRMING
MODIFICATION OF THE FATHER’S PARENTING TIME PER THE
MAGISTRATE’S DECISION, DESPITE THIS DECISION’S RELIANCE ON A
DETERMINATION THAT THE HARM CAUSED TO THE CHILD BY
LIMITING HER TIME WITH HER FATHER IS OUTWEIGHED BY A
POSITIVE ENVIRONMENT CHANGE, WITHOUT FIRST UTILIZING AN
INDEPENDENT REVIEW TO REASONABLY ASSURE THAT THE
MANIFEST WEIGHT OF THE EVIDENCE PRODUCED AT TRIAL
ACTUALLY SUPPORTED SUCH A DETERMINATION.
{¶20} Mr. Swedlow argues that the trial court abused its discretion in adopting the
magistrate’s finding that the harm likely to be caused by a change in the child’s environment was
outweighed by the advantages of a stable and consistent environment as such a finding was
against the manifest weight of the evidence. In addition, Mr. Swedlow argues that the trial court
failed to consider the factors set forth in Revised Code Section 3109.051(D) when it modified his
companionship time and that the trial court failed to conduct an independent review of the
magistrate’s application of the law to the facts. We disagree.
Weight of the evidence concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.
It indicates clearly to the jury that the party having the burden of proof will be
entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of the credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends on
its effect in inducing belief.’
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78
Ohio St.3d 380, 387 (1997). Thus, “manifest weight of the evidence” pertains to the burden of
persuasion. Id. at ¶ 19.
10
{¶21} Prior to these proceedings, the parties utilized a schedule wherein the child lived
with each parent on alternating weeks. The trial court modified the shared parenting plan so that
the alternating week schedule was only followed during the summer and the child resided with
Mrs. Riegler during the week when school was in session. Mr. Swedlow was given
companionship time with the child during the school year the first three full weekends of every
month from Friday after school until Sunday at 7:00 p.m. plus mid-week companionship time
during the remaining weeks of the month.
{¶22} The magistrate’s decision indicates that both parents testified along with the
guardian ad litem, the Family Court Services evaluator, the child’s teacher and several other
witnesses. Mr. Swedlow argues that the testimony of the teacher and the guardian ad litem in
particular support his contention that the child would be harmed by the change in the shared
parenting plan, and that, in light of their testimony, the trial court’s decision is against the
manifest weight of the evidence.
{¶23} Given the limited record, this Court does not conclude that the trial court abused
its discretion in overruling Mr. Swedlow’s objection and adopting the magistrate’s finding that
any harm that would result to the child as a result of the change in environment was outweighed
by the advantages. “Pursuant to App.R. 9(B), an appellant who wishes to assert that a finding or
conclusion is * * * against the manifest weight of the evidence shall include in the record ‘a
transcript of proceedings that includes all evidence relevant to the findings or conclusion.’”
Technical Constr. Specialties, Inc. v. New Era Builders, Inc., 9th Dist. Summit No. 25776, 2012-
Ohio-1328, ¶ 9. As stated earlier, Mr. Swedlow has failed to provide this Court with a transcript
of the evidentiary hearing or with a statement of the evidence pursuant to Appellate Rule 9(C).
Because the record is devoid of the evidence necessary to decide the portion of Mr. Swedlow’s
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assignment of error concerning the manifest weight of the evidence, this Court “has no choice
but to presume the validity of the lower court’s proceedings, and affirm.” Id. at ¶ 11, quoting
Knapp, 61 Ohio St.2d at 199.
{¶24} With regard to Mr. Swedlow’s argument that the trial court failed to consider the
factors set forth in Revised Code Section 3109.051(D), this Court notes that Mr. Swedlow did
not raise this argument in his objections to the magistrate’s decision and raises it for the first time
on appeal. Failure to specifically raise an argument in an objection to a magistrate’s decision,
results in a forfeiture of the argument on appeal unless the party can establish plain error. Johns,
2013-Ohio-557 at ¶ 17. “[T]he plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where error, to which no objection was
made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the
judicial process * * *.” Goldfuss v. Davidson, 79 Ohio St.3d 116, syllabus (1997). Mr. Swedlow
has failed to demonstrate that the trial court committed plain error by not considering the factors
provided in Revised Code 3109.051(D). Further, this statute does not apply to proceedings, such
as the present case, wherein the court has ordered a shared parenting plan. See R.C. 3109.051(A)
(“If a divorce * * * proceeding involves a child and if the court has not issued a shared parenting
decree, the court * * * shall make a just and reasonable order or decree permitting each parent
who is not the residential parent to have parenting time * * *.”)
{¶25} Finally, with regard to Mr. Swedlow’s contention that the trial court failed to
conduct an independent review of the magistrate’s decision, he appears to argue that the alleged
error was evidenced by the court’s failure to apply the factors set forth in Revised Code
3109.051(D). Civil Rule 53(D)(4)(d) provides that:
If one or more objections to a magistrate’s decision are timely filed, the court
shall rule on those objections. In ruling on objections, the court shall undertake an
12
independent review as to the objected matters to ascertain that the magistrate has
properly determined the factual issues and appropriately applied the law.
“In other words, Civ.R. 53 does not authorize a trial court to summarily overrule objections as a
sanction without conducting the independent review of the magistrate’s decision that is
warranted under the circumstances.” Lakota v. Lakota, 9th Dist. Medina No. 10CA0122-M,
2012-Ohio-2555, ¶ 15.
{¶26} The trial court in this case stated in its judgment entry that it had reviewed Mr.
Swedlow’s objections, Mrs. Riegler’s responses and other documents in the file. The court
specifically classified Mr. Swedlow’s objections as pertaining to factual findings and determined
that the Magistrate’s findings of fact were correct due to his failure to file a transcript. As stated
above, Mr. Swedlow did not specifically object to the magistrate’s decision on the basis of the
failure to consider the factors set forth in Revised Code 3109.051(D). The magistrate’s decision
instead considered the factors set forth in Revised Code 3109.04(F)(1) in finding that it was in
the child’s best interest to modify the shared parenting plan. The trial court clearly reviewed and
agreed with the magistrate’s reasoning, although it did not explicitly state as much, when it
overruled Mr. Swedlow’s objections and ordered that the plan be modified. As further evidence
that the court undertook an independent review of the magistrate’s decision, the trial court added
a finding that Mr. Swedlow was voluntarily unemployed. This finding was not included in the
magistrate’s decision. Based on the foregoing, Mr. Swedlow has not demonstrated that the trial
court failed to conduct an independent review of the magistrate’s decision as required by Civil
Rule 53(D)(4)(d). His fourth assignment of error is overruled.
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FIFTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN IMPUTING MINIMUM WAGE INCOME TO
FATHER FOR CHILD SUPPORT PURPOSES WITHOUT FIRST[]
EXPLICITLY FINDING HIM VOLUNTARILY UNEMPLOYED OR
UNDEREMPLOYED.
SIXTH ASSIGNMENT OF ERROR
THE COURT’S EVENTUAL FINDING OF VOLUNTARY
UNEMPLOYMENT IS UNSUPPORTED BY ANY EVIDENCE, AND IS IN
FACT, AGAINST THE MANIFEST WEIGHT OF [THE] EVIDENCE
PROVIDED AT TRIAL.
{¶27} Mr. Swedlow argues that the magistrate erred in imputing income to him for
purposes of calculating his child support obligation without first finding him voluntarily
unemployed or underemployed. He additionally maintains that the trial court’s finding that he
was voluntarily unemployed is against the manifest weight of the evidence. Mr. Swedlow also
argues that Revised Code 3119.05(I) precludes the imputation of income and a finding that he is
voluntarily unemployed because he receives means-tested public assistance benefits. This Court
disagrees.
{¶28} “This Court has consistently held that a trial court must expressly find a parent to
be voluntarily unemployed or underemployed before imputing income to that parent.” Morrow
v. Becker, 9th Dist. Medina No. 11CA0066-M, 2012-Ohio-3875, ¶ 36. Mr. Swedlow is correct
when he states that the magistrate’s decision failed to find him either voluntarily unemployed or
underemployed. However, the trial court did include a finding that he was voluntarily
unemployed in its judgment entry overruling his objections. Because “[a]ny claim of trial court
error must be based on the actions of the trial court, not the magistrate’s findings or proposed
decision[,]” Mr. Swedlow’s argument that the court failed to find him voluntarily unemployed or
14
underemployed is without merit. Mealey v. Mealey, 9th Dist. Wayne No. 95CA0093, 1996 WL
233491, *2 (May 8, 1996).
{¶29} While Mr. Swedlow’s argument that the trial court’s finding that he was
voluntarily unemployed is couched in terms of challenging the manifest weight of the evidence,
the substance of his argument suggests that the trial court lacked any evidence from which it
could conclude that he was voluntarily unemployed. As such, this Court will analyze his
argument using the sufficiency standard.
{¶30} The Ohio Supreme Court recently clarified that “[t]he sufficiency of the evidence
is quantitatively and qualitatively different from the weight of the evidence.” Eastley, 132 Ohio
St.3d 328, 2012–Ohio–2179, at paragraph two of the syllabus. “‘Sufficiency’ is a term of art
meaning that legal standard which is applied to determine * * * whether evidence is legally
sufficient to support [a finding] as a matter of law.” Raykov v. Raykov, 9th Dist. Summit No.
26107, 2012–Ohio–2611, ¶ 8, quoting Thompkins, 78 Ohio St.3d at 386. It is, therefore, a test of
adequacy. Thompkins at 386.
{¶31} The trial court did not err in accepting the factual findings contained in the
magistrate’s decision as true since Mr. Swedlow did not provide a transcript to support his
argument. City of Cuyahoga Falls v. Eslinger, 9th Dist. Summit No. 21951, 2004-Ohio-4953, ¶
6. The magistrate’s decision included a factual finding that Mr. Swedlow was unemployed for
three years, previously worked in sales, received a paralegal degree in 2010, and received cash
assistance that required him to work 30 hours per week. Civil Rule 53(D)(4)(b) allows a trial
court to “adopt or reject a magistrate’s decision in whole or in part, with or without
modification” regardless of whether or not objections are timely filed. The practical effect of the
trial court’s decision in finding that Mr. Swedlow was voluntarily unemployed, regardless of the
15
fact that it expressly “overruled and dismissed” Mr. Swedlow’s objections, was to sustain his
objection on that point and modify the magistrate’s decision accordingly. Given the limited
record before this Court, we cannot say that the trial court abused its discretion in modifying the
magistrate’s decision by finding that Mr. Swedlow was voluntarily unemployed as there was
sufficient evidence from which it could make such a conclusion.
{¶32} Finally, Mr. Swedlow’s argument that the trial court could not impute income
to him or find him voluntarily unemployed due to the fact that he received means-tested public
assistance is without merit. Revised Code Section 3119.05(I)(1) provides that, “[u]nless it would
be unjust or inappropriate and therefore not in the best interests of the child,” a parent who
receives means-tested public assistance benefits, such as “cash assistance payments under the
Ohio works first program established under Chapter 5107 of the Revised Code,” may not be
determined to be voluntarily unemployed and shall not have income imputed to him. Mr.
Swedlow’s objections represented that he received means-tested assistance, but the magistrate’s
decision does not make that specific factual finding. The magistrate’s decision instead found
that he “is currently receiving cash assistance.” There is no evidence from the limited record
before us that the assistance Mr. Swedlow received is means-tested or that it is “cash assistance
payments under the Ohio works first program” as stated in Revised Code Section 3119.05(I)(1).
{¶33} Further, Revised Code Section 3119.05(I) does not prohibit a finding that the
obligor is voluntarily unemployed or underemployed, and, thus, the imputation of income to a
child support obligor, if it is just, appropriate and in the best interests of the child. The
magistrate’s decision adopted by the court did include a legal conclusion that the child support
award was just, appropriate and in the best interest of the child. Accordingly, Mr. Swedlow’s
fifth and sixth assignments of error are overruled.
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III.
{¶34} Mr. Swedlow’s assignments of error are overruled, and the judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR.
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APPEARANCES:
RONALD M. SWEDLOW, pro se, Appellant.
LESLIE S. GRASKE, Attorney at Law, for Appellee.