In re A.S. , 2014 Ohio 4936 ( 2014 )

[Cite as In re A.S., 2014-Ohio-4936.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101339
IN RE: A.S.
A Minor Child
[Appeal by K.P., Father]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. SU 13704089
BEFORE: E.A. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 6, 2014
FOR APPELLANT
K.P., pro se
3321 E. 79th Street
Cleveland, Ohio 44127
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph C. Young
Assistant Prosecuting Attorney
P.O. Box 93894
Cleveland, Ohio 44101-5984
T.S., pro se
1552 E. 195th Street
Euclid, Ohio 44117
EILEEN A. GALLAGHER, J.:
{¶1} Appellant K.P. appeals a child support order entered in the Cuyahoga County
Court of Common Pleas, Juvenile Division. K.P. argues that the trial court failed to examine the
necessary evidence or make the necessary findings under R.C. 3119.05(B), 3119.022 and
3119.76(A). Finding no merit to the instant appeal, we affirm the trial court’s decision.
{¶2} Mother T.S. gave birth to A.S. on April 27, 2002. On March 19, 2013,
Cuyahoga County Job and Family Services filed a complaint seeking an order for K.P. to pay
child support for A.S. The record reflects that the parent-child relationship between A.S. and
K.P. was established in a prior case.
{¶3} A hearing on this matter was held before a magistrate who found that A.S. resides
with T.S., that K.P. had five other biological or adopted children who did not reside in his home
for whom he had paid $5,407 in court- ordered child support within the last 12 months and that
K.P. had three biological children who lived with him. The magistrate found K.P.’s annual
income to be $31,000, prepared a guideline worksheet to calculate K.P.’s child support pursuant
to R.C. Chapter 3119 and found his support for A.S. to be $225.37 per month along with $56.18
per month in cash medical support when private health insurance is not being provided.
{¶4} On April 22, 2014, K.P. filed objections to the magistrate’s decision on the basis
“1. I do have my three minor kids residing in my home” and “2. I paid $8,749.56 in child
support in the past year with no arrears.” K.P. attached an earnings statement from his employer
reflecting a year-to-date child support deduction of $8,749.56 as of December 2013. However,
it is unclear from the record whether K.P. submitted this documentation at the hearing on the
matter nor is there any evidence that K.P. supplied to the trial court a transcript of the
proceedings before the magistrate. The trial court overruled K.P.’s objections and adopted the
magistrate’s decision on April 25, 2014. K.P. appeals asserting the following sole assignment of
error:
The trial court erred to the prejudice of appellant because it did not examine the
necessary evidence or make the necessary findings under Ohio Revised Code
3119.05(B), 3119.022(9), [sic] and 3119.76(A).
{¶5} K.P. argues that the trial court erred in crediting him with $5,407 in annual
court-ordered child support instead of $8,749.56. However, as noted above, it does not appear
from the record that K.P. provided the trial court with a transcript of the proceedings before the
magistrate. Where a party objects to a magistrate’s factual finding, the trial court must conduct
an “independent review as to the objected matters to ascertain that the magistrate has properly
determined the factual issues and appropriately applied the law.” In re H.R.K., 8th Dist.
Cuyahoga No. 97780, 2012-Ohio-4054, ¶ 10; Juv.R. 40(D)(4)(d). The independent review
requires the trial court to “conduct a de novo review of the facts and an independent analysis of
the issues to reach its own conclusions about the issues in the case.” Radford v. Radford, 8th
Dist. Cuyahoga Nos. 96267 and 96445, 2011-Ohio-6263, ¶ 13.
{¶6} To aid in the court’s independent review, if the objecting party has challenged a
magistrate’s finding of fact, the party must supply the trial court with “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.” In re H.R.K. at ¶ 11; Juv.R. 40(D)(3)(b)(iii). Absent a transcript of
proceedings, or appropriate affidavit as provided in the rule, a trial court is limited to an
examination of the magistrate’s conclusions of law and recommendations, accepting the
magistrate’s findings of fact, unless the trial court elects to hold further hearings. In re C.L., 8th
Dist. Cuyahoga No. 93720, 2010-Ohio-682, ¶ 8, citing Wade v. Wade, 113 Ohio App.3d 414,
418, 680 N.E.2d 1305 (11th Dist.1996); In re D.S.R., 11th Dist. Lake Nos. 2011-L-119 and
2011-L-130, 2012-Ohio-5823, ¶ 17.
{¶7} Even if K.P. had properly complied with Juv.R. 40(D)(3)(b)(iii), he has failed to
provide this court with a transcript of the hearing. As the court stated in Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980):
The duty to provide a transcript for appellate review falls upon the appellant. This
is necessary because an appellant bears the burden of showing error by reference
to matters in the record. * * * 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. at 199.
{¶8} In this instance, K.P. has not provided us with a transcript of the proceedings
necessary to evaluate his argument that the magistrate made incorrect factual findings regarding
his court-ordered child support obligations stemming from his other children. Finding no error in
a calculation derived from the worksheet, we are constrained to presume regularity and
summarily reject his assignment of error. In re D.S., 8th Dist. Cuyahoga No. 101012,
2014-Ohio-3596, ¶ 9; In re Z.B., 8th Dist. Cuyahoga No. 96304, 2011-Ohio-2936, ¶ 7.
{¶9} K.P.’s sole assignment of error is overruled.
{¶10} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR