O'Hara v. Ephraim

[Cite as O'Hara v. Ephraim, 2018-Ohio-567.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
KATHRYN M. O'HARA C.A. No. 28467
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
FREDERICK J. EPHRAIM COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2013-08-2158
DECISION AND JOURNAL ENTRY
Dated: February 14, 2018
CARR, Judge.
{¶1} Appellant Frederick Ephraim (“Husband”) appeals from the judgment of the
Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Husband married Kathryn O’Hara (“Wife”) on August 22, 2008. Husband and
Wife were married in Maryland but moved multiple times based upon Husband’s employment.
Two children were born of the marriage, J.E. (d.o.b. August 24, 2010) and A.E. (d.o.b. January
9, 2013). In August 2013, Wife filed a complaint for divorce. Husband answered and filed a
counterclaim, also seeking a divorce. At the time of the filing of the complaint, Wife had been
living in Ohio since late 2012 and Husband was living in Maryland. At the time of the hearing,
Husband and Wife had been living separate and apart for a year without cohabitation.
{¶3} Ultimately, the matter proceeded to a hearing before a magistrate. On December
16, 2015, the magistrate issued a lengthy decision, granting the parties a divorce, which was
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adopted by the trial court the same day. The magistrate noted that both children suffered from
health issues. J.E. was diagnosed with traumatic brain injury, cognitive delays, physical delays,
failure to thrive, seizures, severe expressive disorder, mild to severe receptive disorder, eating
issues, and sleep disturbances. There was also testimony that J.E. was autistic and had severe
behavioral problems. A.E. experienced gastrointestinal issues, failure to thrive, and delayed
milestones. The entry stated that Wife was unable to work due to the disabilities of the two
children and the around-the-clock care that they required. Additionally, the court found that the
children were “unable to support themselves because of mental and physical disabilities to the
extent of being incapable of maintaining themselves.” See Castle v. Castle, 15 Ohio St.3d 279(1984); Ulery v. Ulery, 86 Ohio App.3d 290 (9th Dist.1993). Wife was named the residential
parent and legal custodian of the children and Husband was granted parenting time with the
children.
{¶4} Husband’s income was found to be $103,190.58 and Wife’s was $0 for purposes
of child support and spousal support. Husband was ordered to pay respite care and was ordered
to pay child support in the amount of $2,497.33 per month, plus a processing charge. The trial
court found that the amount of child support was in the best interests of the children based upon
several factors in R.C. 3119.23. The entry also included a finding that child support would
extend beyond the children’s eighteenth birthdays. Wife was required to pay the first $100 per
year towards each child’s uninsured or unreimbursed health care costs. Costs above that amount
were apportioned equally between Husband and Wife, with credit to Husband for any cash
medical support ordered for any month the children were not Medicaid recipients.
{¶5} The trial court found, after considering the factors in R.C. 3105.18(C)(1), that
continuing spousal support was appropriate and reasonable, and awarded Wife $615.33 in
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spousal support per month. However, the trial court also found that spousal support would be
subject to further order of the court and reserved jurisdiction to make modifications under certain
circumstances.
{¶6} Husband filed three brief, general objections to the magistrate’s decision and
indicated that he would supplement them following the filing of the transcript. Several months
later, Wife filed a motion to dismiss Husband’s objections. In the motion, Wife noted that, since
the filing of objections, Husband had switched attorneys a couple of times, and that, as of the
filing of her motion, the transcript had still not been filed. Additionally, Wife pointed to issues
with the timing of the filing of the praecipe and the deposit. From the record, it appears that
there may have been a hearing on the motion, although that is unclear because there is no ruling
on the motion in our record, nor is there a transcript of that hearing. Nonetheless, on December
15, 2016, the trial court issued an entry stating that the matter was before it on the objections of
Husband filed December 22, 2015. The court stated that it had “reviewed the docket, the
pleadings and transcript[,]” adopted the decision of the magistrate, and overruled the objections.
{¶7} Husband has appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN FINDING BOTH CHILDREN WERE
CASTLE CHILDREN.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT ORDERED AN UPWARD
DEVIATION AND FOR APPELLANT TO PAY OUT OF POCKET
EXPENSES FOR THE MINOR CHILDREN.
{¶8} Husband argues in his first assignment of error that the trial court erred in finding
both children to be Castle children. Specifically, Husband argues Wife failed to present
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sufficient evidence to establish that the children were mentally or physically disabled and that
they were incapable of supporting or maintaining themselves. Husband argues in his second
assignment of error that the trial court erred in ordering both an upward deviation of child
support and in ordering Husband to pay respite care and out of pocket expenses of the children.
{¶9} Generally, this Court reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion. Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M,
2009-Ohio-3139, ¶ 17. 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). “In so doing, we consider the trial court’s action with reference to the nature of the
underlying matter.” Tabatabai at ¶ 18.
{¶10} A party may challenge a magistrate’s decision by filing objections thereto. Civ.R.
53(D)(3)(b). “An objection to a magistrate’s decision shall be specific and state with
particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). “Except for a claim of plain
error, a party shall not assign as error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law
under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv).
{¶11} Further, “[a]n objection to a factual finding, whether or not specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by 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.” Civ.R. 53(D)(3)(b)(iii). “The objecting party shall file
the transcript or affidavit with the court within thirty days after filing objections unless the court
extends the time in writing for preparation of the transcript or other good cause.” Civ.R.
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53(D)(3)(b)(iii). “Without a transcript of the hearing, [a] trial court [is] required to accept all of
the magistrate’s findings of fact as true and only review the magistrate’s conclusions of law
based upon the accepted findings of fact. It follows that [the appellate court] must do the same.”
(Internal quotations and citations omitted.) Stewart v. Hickory Hills Apts., 9th Dist. Medina No.
14CA0038-M, 2015-Ohio-5046, ¶ 11.
{¶12} In the instant matter, Husband filed three objections to the magistrate’s decision.
The objections were as follows: (1) “[T]he Chief Magistrate misinterpreted the standard of law
in determining that the minor children in this matter be designated Castle children[;]” (2) “the
Court inappropriately recommended that [Wife] receive indefinite spousal support despite a
finding that the length of the parties’ marriage was only six years and one month[;]” and (3) “the
allocation of debts, award of attorneys’ fees, requirement of whole or term life insurance
benefitting [Wife], and other impositions of financial obligations, were made without regard for
their affordability, in light of the limited financial resources of [Husband].”
{¶13} We conclude that Husband failed to preserve the arguments he has raised in his
first two assignments of error. Husband’s first objection to the magistrate’s decision appears to
challenge the standard of law the magistrate applied in finding the children to be Castle children,
not the quantity or quality of the evidence submitted to support the finding made by the
magistrate. On appeal, Husband essentially challenges whether there was sufficient evidence to
support that the children were Castle children. Thus, Husband has forfeited the issue he now
raises. Further, Husband has not argued plain error on appeal, and we decline to construct an
argument for him. See Adams v. Adams, 9th Dist. Wayne No. 13CA0022, 2014-Ohio-1327, ¶ 6;
see also Phillips v. Hostetler, 9th Dist. Summit No. 28397, 2017-Ohio-2834, ¶ 17.
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{¶14} In his second assignment of error, Husband challenges the trial court’s decision to
order upward deviation of child support along with an order that he pay certain other expenses.
Husband claims such is an order to “pay child support twice[.]” None of Husband’s objections
mention child support or related payments. While Husband argues that his third objection
addresses this issue, we are not persuaded. Husband’s third objection alleged that “the allocation
of debts, award of attorneys’ fees, requirement of whole or term life insurance benefitting
[Wife], and other impositions of financial obligations, were made without regard for their
affordability, in light of the limited financial resources of [Husband].” Even if we were to
conclude that Husband’s challenge to “other impositions of financial obligations” somehow
challenged child support and related expenses, Husband only challenged them with respect to his
ability to afford them, not with respect to whether the trial court’s upward deviation combined
with an order to pay additional expenses amounted to an order that Husband “pay child support
twice.” Husband’s argument on appeal does not discuss any affordability concerns, and instead
appears to address general fairness concerns. Accordingly, Husband has not preserved this
argument for appeal, and as he has not argued plain error, we overrule it on that basis. See
Adams at ¶ 6; Phillips at ¶ 17.
{¶15} Further, even if we were to conclude that Husband’s objections preserved the
arguments he now makes, or if we were to consider his argument for plain error, Husband did
not file a transcript of the magistrate’s hearing in the trial court prior to the trial court ruling on
the objections. See Civ.R. 53(D)(3)(b)(iii). Accordingly, even though the trial court stated that
it considered the transcript, the transcript was not properly before the trial court. See Civ.R.
53(D)(3)(b)(iii) (“The objecting party shall file the transcript or affidavit with the court within
thirty days after filing objections unless the court extends the time in writing for preparation of
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the transcript or other good cause.”). The trial court was instead required to “presume regularity
in the proceedings on any finding of fact made by the magistrate.” (Internal quotations and
citations omitted.) Strassini v. Strassini, 9th Dist. Summit No. 26038, 2012-Ohio-5269, ¶ 2.
Moreover, as the transcript was not available for the trial court to consider in ruling on the
objections, this Court cannot consider it either. See id. Given the foregoing, Husband has not
demonstrated that the trial court erred.
{¶16} Husband’s first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DETERMINING THAT SPOUSAL SUPPORT SHOULD BE CONTINUOUS
AND FAILED TO DESIGNATE A SPECIFIC DATE FOR TERMINATION.
{¶17} Husband argues in his third assignment of error that the trial court erred in
determining that spousal support should be continuous and in failing to designate a termination
date.
{¶18} While Husband did raise this issue in his objections to the magistrate’s decision,
Husband has failed to demonstrate the trial court abused its discretion in overruling his objection.
As noted above, Husband failed to file the transcript of the magistrate’s hearing in the trial court
prior to the trial court ruling on the objections. See Civ.R. 53(D)(3)(b)(iii). Thus, the transcript
was not properly before the trial court, see id., and the trial court was required to accept the
magistrate’s factual findings. Stewart, 2015-Ohio-5046, at ¶ 11. Husband’s argument on appeal
clearly necessitates review of the transcript; a review which this Court cannot conduct under the
circumstances. Strassini, 2012-Ohio-5269, at ¶ 2. Given the foregoing, Husband has not
demonstrated that the trial court abused its discretion in overruling Husband’s objection.
{¶19} Husband’s third assignment of error is overruled.
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III.
{¶20} Husband’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, 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.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:
KENNETH M. CRISLIP, Attorney at Law, for Appellant.
RACHEL A. KOPEC, Attorney at Law, for Appellant.
DEAN S. HOOVER, Attorney at Law, for Appellee.