Rodriguez v. Porras

[Cite as Rodriguez v. Porras, 2018-Ohio-4694.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOSHUA RODRIGUEZ : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
TAMARA PORRAS (NKA BALES) : Case No. 18 CAF 04 0032
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 10 DR A 03 0156
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 20, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOSHUA RODRIGUEZ, Pro Se TAMARA BALES, Pro Se
2918 Blossom Avenue 11735 US Route 62
Columbus, OH 43231 Killbuck, OH 44637
BRIAN G. JONES
52 North Sandusky Street
Delaware, OH 43015
Delaware County, Case No. 18 CAF 04 0032 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Joshua Rodriguez, appeals the March 20, 2018 decision
of the Court of Common Pleas of Delaware County, Ohio, Domestic Relations Division,
denying his objections to a magistrate's decision. Defendant-Appellee is Tamara Porras
(nka Bales).
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were divorced on January 25, 2011. Appellee was
named legal custodian and residential parent of the parties' two children.
{¶ 3} On September 16, 2016, appellant filed a motion to reallocate parental
rights and responsibilities. Hearings before a magistrate were held on September 11, 12,
13, and 14, 2017. In a lengthy decision filed January 30, 2018, the magistrate denied the
motion, finding no change of circumstances, a reallocation of parental rights and
responsibilities was not in the children's best interests, and the harm likely to be caused
by a change of environment would not be outweighed by the advantages of a change of
environment to the children.
{¶ 4} Appellant filed objections. By judgment entry filed March 20, 2018, the trial
court denied the objections. The trial court noted appellant did not file a transcript of the
hearings before the magistrate, but filed an affidavit of evidence. The trial court approved
and adopted the magistrate's decision.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments or error are as follows:
Delaware County, Case No. 18 CAF 04 0032 3
I
{¶ 6} "PLAINTIFF CHALLENGES SEVERAL BUT NOT ALL FINDINGS OF
FACT IN MAGISTRATE[']S DECISION FILED JANUARY 30, 2018 AND ADOPTED AS
A FINAL APPEALABLE ORDER ON MARCH 16, (SIC) 2018."
II
{¶ 7} "THE TRIAL COURT ERRED AND ABUSED IT'S (SIC) DISCRETION IN
OVERRULING ALL CONTEMPT, AND IN NOT ISSUING JUST PENALTIES AGAINST
DEFENDANT FOR EACH VIOLATION PER LOCAL RULE."
III
{¶ 8} "THE TRIAL COURT ERRED AND ABUSED IT'S (SIC) DISCRETION
WHEN IT CIN (SIC) GRANTED DEFENDANT'S MOTION FOR CONTEMPT."
IV
{¶ 9} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
CONCLUDED THAT A CHANGE IN PARENTAL RIGHTS AND RESPONSIBILITIES
DUE TO A CHANGE IN CIRCUMSTANCE IS NOT IN THE BEST INTEREST OF THE
CHILDREN, AND THE HARM WOULD NOT BE OUTWEIGHED BY THE BENEFITS
PURSUANT TO R.C. 3109.04(F)."
V
{¶ 10} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
CONCLUDED THAT DEFENDANT IS NOT RESPONSIBLE FOR ATTORNEY'S FEES
INCURRED ON PLAINTIFF-APPELLANT."
Delaware County, Case No. 18 CAF 04 0032 4
I
{¶ 11} In his first assignment of error, appellant challenges several findings of fact
in the magistrate's decision.
{¶ 12} As noted by the trial court, appellant did not file a transcript of the hearings
before the magistrate for the trial court's review. Pursuant to Civ.R. 53(D)(3)(b)(iii),
objections to the magistrate's factual findings must be supported by a transcript: "An
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."
{¶ 13} According to the trial court's judgment entry, appellant stated he could not
afford to produce a copy of the written transcript. As found by the trial court, appellant
"failed to show how the transcript was not available. As the transcript was available, a
copy of the transcript was required to be filed." We agree with the trial court's analysis.
{¶ 14} This court has held, " 'where an appellant fails to provide a transcript of the
original hearing before the magistrate for the trial court's review, the magistrate's findings
of fact are considered established and may not be attacked on appeal.' " J.S. v. T.S., 5th
Dist. Knox No. 16CA18, 2017-Ohio-1042, ¶ 22, quoting Murray v. Miller, 5th Dist. Richland
No. 15CA02, 2015-Ohio-3726, ¶ 35. As explained by the Tenth District in Bahgat v.
Kissling, 10th Dist. Franklin No. 17AP-641, 2018-Ohio-2317, ¶ 21:
Without a transcript of the hearing, a trial court is required to accept
all the magistrate's findings of fact as true and only review the legal
Delaware County, Case No. 18 CAF 04 0032 5
conclusions drawn from those facts. JPMorgan Chase Bank, N.A. v.
Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 14, fn. 1; Bayview
Loan Servicing at ¶ 12. "The same is true of this court's review on appeal."
Liggins at ¶ 14, fn. 1; Bayview Loan Servicing at ¶ 12 ("Without a transcript,
an appellant cannot demonstrate error with respect to factual findings, and
thus, the appellate court must presume the regularity of the proceedings
and that the facts were correctly interpreted.").
{¶ 15} Upon review, we find appellant is precluded from challenging the
magistrate's findings of fact under Civ.R. 53(D)(3)(a)(iii).
{¶ 16} Assignment of Error I is denied.
II
{¶ 17} In his second assignment of error, appellant claims the trial court erred and
abused its discretion in denying all contempt and in not issuing just penalties for each
violation. We disagree.
{¶ 18} Our standard of review of a trial court's finding of contempt is abuse of
discretion. State ex. rel. Celebrezze v. Gibbs, 60 Ohio St. 3d 69, 573 N.E.2d 62 (1991).
In order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
{¶ 19} Prior to the magistrate's hearing, appellant filed two contempt motions
against appellee, one on September 16, 2016, and one on December 29, 2016.
Delaware County, Case No. 18 CAF 04 0032 6
{¶ 20} As outlined by the magistrate in his decision at No. 104, the September
motion alleged appellee:
denied him visitation on numerous occasions, including his normal time plus
certain calamity school days as ordered, allowed her boyfriend to transport
the children, violated the right of first refusal, failed to transport [A.] to
softball games and practices, failed to provide Plaintiff with all information
related to extra-curricular activities and school functions, prohibited the
children from bringing their cellphones to Plaintiff's house and
communicating with Plaintiff, failed to give Plaintiff notice of doctor's
appointments and other medical issues involving the children, failed to
maintain counseling for the children, etc.
{¶ 21} At No. 105, the magistrate found in examining the evidence, appellee
"willfully" denied appellant's parenting time, and found her to be in contempt for doing so
"as a litigation leverage to negotiate a different schedule." At No. 106, the magistrate
found appellee was not in contempt for denying appellant visitation on school calamity
days.
{¶ 22} In his December motion, appellant alleged appellee "should be found in
contempt for failing to transport [A.] for visitation and for speaking negatively about him in
front of the children." Magistrate's Decision at No. 107. The magistrate analyzed the
totality of the evidence and found appellee should not be found in contempt on these
issues. Magistrate's Decision at No. 108.
Delaware County, Case No. 18 CAF 04 0032 7
{¶ 23} For the contempt finding under the September motion, the magistrate stated
appellee could purge the contempt by paying appellant $500, and ordered appellee to
pay appellant $500 for attorney fees. Magistrate's Decision at E.
{¶ 24} In its judgment entry, the trial court found the magistrate did not err in ruling
on the contempt motions. The trial court found any objection to the September motion
was moot "given that the magistrate ultimately found Mother in contempt on that Motion."
As for the December motion, the trial court found "the magistrate's findings lead one to
appropriately conclude that Mother should not be found in contempt. Mother attempted
to comply with the Order and it was eventually done as indicated in the Decision."
{¶ 25} We concur with the trial court's analysis. The magistrate did not deny all
contempt, but in fact found appellant in contempt under the September motion and
imposed a penalty for willfully denying parenting time and exhibiting "a pattern of unilateral
decision-making and exercise of absolute dominion and control over Plaintiff's parenting
time." Magistrate's Decision at No. 105. The magistrate addressed the allegations
regarding right of first refusal, transportation issues, providing all information related to
extra-curricular activities and school functions, communications with appellant, and failure
to maintain counseling for the children. Magistrate's Decision at Nos. 34, 38, 39, 46, 48,
59, 62, 73. Without a transcript, we are unable to determine if appellant presented any
evidence regarding lack of communication of doctor's appointments and other medical
issues.
{¶ 26} Upon review, we find the trial court did not abuse its discretion in its ruling
on appellant's contempt motion against appellee.
{¶ 27} Assignment of Error II is denied.
Delaware County, Case No. 18 CAF 04 0032 8
III
{¶ 28} In his third assignment of error, appellant claims the trial court erred and
abused its discretion in granting appellee's motion for contempt. We disagree.
{¶ 29} Appellee filed a motion for contempt against appellant on July 26, 2017,
alleging he failed to pay his portion of a doctor's fee as ordered to do so pursuant to an
agreed magistrate's order filed February 16, 2017. Magistrate's Decision at Nos. 109 and
110. At No. 111, the magistrate found the evidence established appellant failed to pay
his portion of the doctor's bill by the required due date, and found him to be in contempt.
The magistrate stated appellant could purge the contempt by reimbursing appellee for his
portion of the bill, and ordered appellant to pay appellee $500 for attorney fees.
Magistrate's Decision at F.
{¶ 30} In its judgment entry, the trial court found the magistrate did not err in finding
appellant in contempt, as the evidence and the magistrate's findings, taken as true due
to appellant's failure to file a transcript, supported the decision that appellant violated the
February order.
{¶ 31} Upon review, we agree with the trial court's analysis and find the trial court
did not abuse its discretion in finding appellant in contempt.
{¶ 32} Assignment of Error III is denied.
IV
{¶ 33} In his fourth assignment of error, appellant claims the trial court erred and
abused its discretion in denying his motion for the reallocation of parental rights and
responsibilities. We disagree.
Delaware County, Case No. 18 CAF 04 0032 9
{¶ 34} A trial court's decision allocating parental rights and responsibilities is
reviewed under an abuse of discretion standard. Miller v. Miller, 37 Ohio St. 3d 71, 523
N.E.2d 846 (1988); Blakemore, supra.
{¶ 35} R.C. 3109.04(E)(1)(a) states the following:
The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children unless it finds, based on facts
that have arisen since the prior decree or that were unknown to the court at
the time of the prior decree, that a change has occurred in the
circumstances of the child, the child's residential parent, or either of the
parents subject to a shared parenting decree, and that the modification is
necessary to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent designated by the
prior decree or the prior shared parenting decree, unless a modification is
in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent
or both parents under a shared parenting decree agree to a change in the
designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child.
Delaware County, Case No. 18 CAF 04 0032 10
{¶ 36} The magistrate's decision consists of thirty pages, with 111 findings of fact
and conclusions of law and 11 decisions. To reiterate from above, because appellant
failed to file a transcript of the hearings before the magistrate, we accept all of the
magistrate's findings of fact to be true.
{¶ 37} At No. 92, the magistrate concluded "there has been no change of
circumstances to warrant a change in the residential parent of the minor children herein."
At No. 93, the magistrate went on to state: "Even assuming, arguendo, that a change in
circumstances has occurred, a reallocation of parental rights and responsibilities is not in
the children's best interests and the harm likely to be caused by a change of environment
is not outweighed by the advantages of a change of environment to the children." The
magistrate considered the factors under R.C. 3109.04(F)(1) regarding best interests of
the children and outlined his findings in a lengthy paragraph at No. 95. Considering the
totality of the evidence, the magistrate concluded "that it would not be in the children's
best interest to name Plaintiff residential parent and legal custodian. Similarily, the harm
likely to occur from a change would not be outweighed by the alleged advantages of the
change." Magistrate's Decision at No. 96.
{¶ 38} In its judgment entry overruling appellant's objections on the reallocation
issue, the trial court stated the following:
Upon an independent review, the Court finds that the magistrate did
not err in denying Father's Motion. First, there was no change of
circumstance that occurred. The parties' most recent parenting Order was
Delaware County, Case No. 18 CAF 04 0032 11
issued on October 20, 2015, wherein Mother was designated legal
custodian and residential parent of the children. The magistrate's findings
show no change of circumstances from October 20, 2015, up through the
date of trial. Even assuming, arguendo, that a change of circumstance
occurred, a change of custody would not be in the children's best interest.
The magistrate's conclusion was appropriate given his findings that the
children were acclimated to their school and doing well, the children were
involved in and enjoyed school-related extra-curricular activities, Father
downplayed the children's interests, as well as for the other reasons
provided in the magistrate's thorough Decision, which comprised of over
100 findings of fact.
{¶ 39} Upon review, we concur with the trial court's analysis and find the trial court
did not abuse its discretion in denying appellant's motion for the reallocation of parental
rights and responsibilities.
{¶ 40} Assignment of Error IV is denied.
V
{¶ 41} In his fifth assignment of error, appellant claims the trial court erred and
abused its discretion in concluding appellee was not responsible for his attorney fees.
We disagree.
{¶ 42} R.C. 3105.73 governs award of attorney fees and litigation expenses.
Subsection (B) states the following:
Delaware County, Case No. 18 CAF 04 0032 12
In any post-decree motion or proceeding that arises out of an action
for divorce, dissolution, legal separation, or annulment of marriage or an
appeal of that motion or proceeding, the court may award all or part of
reasonable attorney's fees and litigation expenses to either party if the court
finds the award equitable. In determining whether an award is equitable, the
court may consider the parties' income, the conduct of the parties, and any
other relevant factors the court deems appropriate, but it may not consider
the parties' assets.
{¶ 43} An award of attorney fees lies within the trial court's sound discretion. Rand
v. Rand, 18 Ohio St. 3d 356, 481 N.E.2d 609 (1985); Blakemore, supra.
{¶ 44} In its judgment entry filed March 20, 2018, the trial court ordered each party
to be "fully responsible for his or her own attorney fees and litigation costs, holding the
other harmless, except as indicated herein."
{¶ 45} In his appellate brief at 23, appellant argues the following on the issue of
attorney fees:
The Trial Court concluded that Defendant-Appellee is not
responsible for the costs incurred on Plaintiff-Appellant for Attorney's fees.
Plaintiff's Exhibit G2 and G4, shows The Defendant-Appellee denied
visitation completely and demanded a court trial be held before visitation
should resume. The demand was made on no grounds and caused
immense financial encumbrance upon Plaintiff-Appellant without just cause.
Delaware County, Case No. 18 CAF 04 0032 13
{¶ 46} It is unclear what attorney fees appellant is contesting. The issue of denied
visitation was addressed in the contempt finding against appellee, and she was ordered
to pay appellant $500 to purge the contempt and $500 "as the reasonable cost for the
filing of the motion and the prosecution." We find the trial court did not abuse its discretion
in awarding appellant $500 for attorney fees on the contempt motion.
{¶ 47} If appellant is challenging the lack of an award of attorney fees on his motion
for the reallocation of parental rights and responsibilities, we note appellant did not
prevail. We find the trial court did not abuse its discretion in ordering each party to be
responsible for their own attorney fees and litigation costs.
{¶ 48} Upon review, we find the trial court did not abuse its discretion on the issue
of attorney fees.
{¶ 49} Assignment of Error V is denied.
Delaware County, Case No. 18 CAF 04 0032 14
{¶ 50} The judgment of the Court of Common Pleas of Delaware County, Ohio,
Domestic Relations Division is hereby affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Baldwin, J. concur.
_______________________________
Hon. Earle E. Wise, Jr.
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. Craig R. Baldwin
EEW/db 115
[Cite as Rodriguez v. Porras, 2018-Ohio-4694.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOSHUA RODRIGUEZ :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
TAMARA PORRAS (NKA BALES) :
:
Defendant-Appellee : CASE NO. 18 CAF 04 0032
For the reasons stated in our accompanying Memorandum-Opinion, the judgment
of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to appellant.
_______________________________
Hon. Earle E. Wise, Jr.
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. Craig R. Baldwin