Marshall v. Marshall

[Cite as Marshall v. Marshall, 2021-Ohio-2003.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Christopher L. Marshall, :
Plaintiff-Appellee, :
No. 20AP-284
v. : (C.P.C. No. 07DR-2236)
Stephanie N. Marshall, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 15, 2021
On brief: Stephanie N. Marshall, pro se. Argued:
Stephanie N. Marshall.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch.
KLATT, J.
{¶ 1} Defendant-appellant, Stephanie N. Marshall, acting pro se, appeals from the
April 29, 2020 decision and entry issued by the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch. In that judgment, the trial court:
(1) denied appellant's February 7 and April 15, 2020 motions for contempt
against the Franklin County Child Support Enforcement Agency ("FCCSEA") and the trial
court; (2) denied appellant's April 20, 2020 motion challenging the trial court's subject-
matter jurisdiction; and (3) denied appellant's April 20, 2020 motion for recusal of the trial
judge and two magistrates.
{¶ 2} Appellant has timely appealed the trial court's judgment. However,
appellant's brief sets forth no assignments of error. Pursuant to App.R. 16(A)(3), an
No. 20AP-284 2
appellant's brief must contain "[a] statement of the assignments of error presented for
review, with reference to the place in the record where each error is reflected." Assignments
of error are critical because an appellate court "[d]etermine[s] the appeal on its merits on
the assignments of error set forth in the briefs under App.R. 16." App.R. 12(A)(1)(b). An
appellate court does not determine an appeal based on mere arguments and may dismiss
any arguments not specifically included in an assignment of error. Curry v. Columbia Gas
of Ohio, Inc., 10th Dist. No. 19AP-618, 2020-Ohio-2693, ¶ 14, citing Evans v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 18AP-713, 2019-Ohio-3788, ¶ 11, fn. 2, citing App.R.
12(A)(1)(b). Thus, absent assignments of error, an appellate court has nothing to review.
Id., citing Luke v. Roubanes, 10th Dist. No. 16AP-766, 2018-Ohio-1065, ¶ 16. A court of
appeals has discretion to dismiss appeals that fail to set forth assignments of error. Id.,citing CitiMortgage, Inc. v. Asamoah, 10th Dist. No. 12AP-212, 2012-Ohio-4422, ¶ 5.
However, a reviewing court may, in the interests of justice, review an appealed judgment
based upon an appellant's arguments. Id. at ¶ 6.
{¶ 3} In her brief, appellant appears to challenge only the trial court's denial of her
motion for recusal. Appellant claims that the trial judge's failure to recuse herself resulted
in unfair, biased, and prejudicial rulings against appellant in its failure to find FCCSEA in
contempt for its alleged failure to immediately garnish her wages after she changed
employers. Indeed, appellant contends that the denial of her motion for recusal was "a
deliberate attempt to deny me a fair judgment as this judge is not capable of knowing and
ruling by federal guidelines in the collection of child support or she is willfully choosing not
to." (Appellant's Brief at 3.)
{¶ 4} " 'A judge is presumed not to be biased or prejudiced, and a party alleging
bias or prejudice must present evidence to overcome the presumption.' " State v. Hussein,
15AP-1093, 2017-Ohio-5519, ¶ 8, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-
Ohio-4423, ¶ 20 (10th Dist.). " 'The appearance of bias or prejudice must be compelling to
overcome this presumption of integrity.' " Id., quoting Trott v. Trott, 10th Dist. No. 01AP-
852, 2002-Ohio-1077, citing In re Disqualification of Olivito, 74 Ohio St.3d 1261, 1263
(1994).
{¶ 5} Pursuant to R.C. 2701.03, the Supreme Court of Ohio, not the appellate
courts, has authority to determine a claim that a common pleas court judge is biased or
No. 20AP-284 3
prejudiced. Id. at ¶ 9, citing State v. Scruggs, 10th Dist. No. 02AP-621, 2003-Ohio-2019,
¶ 15. If appellant believed that the trial judge was biased or prejudiced against her, her
remedy was to file an affidavit of disqualification with the clerk of the Supreme Court of
Ohio. Id., citing R.C. 2701.03 and Scruggs at ¶ 15. " 'R.C. 2701.03 "provides the exclusive
means by which a litigant may claim that a common pleas judge is biased and
prejudiced." ' " Id., quoting Scruggs at ¶ 15, quoting Jones v. Billingham, 105 Ohio App.3d
8, 11 (2d Dist.1995). "The determination that a trial court judge should have recused
herself/himself or should be disqualified due to bias or prejudice is the exclusive province
of the Chief Justice of the Supreme Court of Ohio or his [or her] designee." Corbin v.
Dailey, 10th Dist. No. 08AP-802, 2009-Ohio-881, ¶ 14, citing State v. Payne, 149 Ohio
App.3d 368, 2002-Ohio-5180, ¶ 8. R.C. 2701.03(B) requires that a party alleging bias or
prejudice by a common pleas court judge file with the clerk of the Supreme Court an
affidavit of disqualification that sets forth the specific allegations and supporting facts on
which the claim of bias or prejudice is based. The record in this case does not reflect that
appellant filed an affidavit with the Supreme Court as provided by R.C. 2701.03. Thus,
appellant did not invoke the jurisdiction of the proper court to review the recusal issue.
Hussein at ¶ 9.
{¶ 6} At oral argument, appellant did not address the recusal issue; rather, her
argument was primarily focused on the trial court's failure to hold FCCSEA in contempt for
failing to immediately garnish her wages when she changed employers. On review, a court
of appeals will not reverse a trial court's determination regarding contempt proceedings
absent an abuse of discretion. Powell v. Lawson, 10th Dist. No. 18AP-289, 2019-Ohio-
4993, ¶ 28, citing Hopson v. Hopson, 10th Dist. No. 04AP-1349, 2005-Ohio-6468, ¶ 9,
citing State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11 (1981). An abuse of discretion is
more than an error of law or judgment; it implies an attitude by the court that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶ 7} In its judgment, the trial court correctly set forth the applicable law regarding
contempt proceedings, including the three elements that must exist in order to support a
finding of contempt: (1) an order of the court; (2) knowledge of the order by the alleged
contemnor; and (3) a failure to comply with the prior court order. Arthur Young & Co. v.
No. 20AP-284 4
Kelly, 68 Ohio App.3d 287, 295 (10th Dist.1990). The trial court found no merit to
appellant's contempt claim, stating "the Court finds FCCSEA did not fail to comply with any
court order and there was understandably a delay in effectuating a new withholding order
when Stephanie changed employers. Thus, the Court finds [appellant] did not meet her
burden of proof in regard to her contempt allegation against the FCCSEA." (Apr. 29, 2020
Decision and Entry at 2-3.) At oral argument, appellant offered no cogent reason as to why
the trial court abused its discretion in so finding. Indeed, appellant acknowledged that
FCCSEA had been and was currently garnishing her wages to make up for the arrearage
occasioned by the delay in effectuating a new withholding order when she changed
employers.
{¶ 8} For the foregoing reasons, we hereby affirm the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.