Combs v. Ferrando, Unpublished Decision (7-2-2001)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

JUDGMENT ENTRY This cause is an accelerated appeal of a decision of the Preble County Court of Common Pleas denying appellant's request for findings of fact and conclusions of law.

On September 1, 2000, plaintiff-appellant, Angela Combs nka Angela Ketron, filed a contempt motion and a motion to modify visitation. The matter was heard by a magistrate who issued a decision on December 26, 2000, denying both motions and assessing attorney fees against appellant. On January 5, 2001, appellant filed a request for findings of fact and conclusions of law pursuant to Civ.R. 53(E)(2). The trial court denied the request because the magistrate who heard the matter had retired during the interim. Appellant did not file a transcript of the proceedings or submit a statement of facts to the trial court. On appeal, appellant argues that the trial court erred by denying her request for further findings of fact.

A trial court may not add to or delete portions of a magistrate's findings of fact without review of the entire transcript of the proceedings before the magistrate. Ohio Edison Company v. Gilmore (1995), 106 Ohio App. 3d 6, 11; Civ.R. 53. Had appellant provided a transcript to the trial court, and the trial court refused to make findings of fact, the appropriate remedy would have been to seek a writ of mandamus to compel findings of fact. State ex rel. Papp v. James (1994), 69 Ohio St. 3d 373, 381. However, appellant failed to provide the trial court with a transcript of the proceedings, necessary for the trial court to make findings of fact. Consequently, we find no error in the trial court's denial of the motion. The judgment of the trial court is affirmed.

Pursuant to App.R. 11.1(E), this entry shall not be relied upon as authority and will not be published in any form. A certified copy of this judgment entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

Anthony Valen, Presiding Judge, James E. Walsh, Judge, Stephen W. Powell, Judge.