Nester v. Nester

[Cite as Nester v. Nester, 2014-Ohio-1759.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SANDRA NESTER JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13 CA 56
DORAN NESTER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 11 DR 438
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 24, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN HERZBERGER DORAN NESTER
2691 East Main Street PRO SE
Suite 102A 61 Carroll Eastern Road NW
Columbus, Ohio 43209 Baltimore, Ohio 43105
Fairfield County, Case No. 13 CA 56 2
Wise, J.
{¶1}. Appellant Doran Nester appeals the decision of the Fairfield County Court
of Common Pleas, Domestic Relations Division, which granted Appellee Sandra
Nester's complaint for divorce. The relevant facts leading to this appeal are as follows.
{¶2}. Appellant Doran and Appellee Sandra were married in Fairfield County,
Ohio, in October 1966. On August 12, 2011, appellee filed a complaint for divorce in the
trial court. Appellant filed an answer on December 2, 2011.
{¶3}. The matter came before the trial court magistrate for final hearing on
October 23, 2012. The magistrate issued a written decision on April 19, 2013,
recommending the granting of a divorce and addressing the various financial issues,
noting that at the time of the decision, appellant was 77 years old and appellee was 68
years old. On May 8, 2013, appellant filed a pro se notice of appeal, which became
case number 13CA38 before this Court.1 However, we dismissed said appeal on July
19, 2013, for want of prosecution.
{¶4}. Thereafter, via a final judgment entry/decree issued by the trial court July
24, 2013, the parties were granted a divorce. Among other things, the trial court ordered
the marital residence sold, with the proceeds to be divided equally, and awarded
appellee spousal support in the amount of $312.50 per month.
{¶5}. On August 8, 2013, appellant filed a pro se notice of appeal. His brief was
filed on September 4, 2013. Appellee did not file a response brief, although she filed a
motion to dismiss the appeal, which we denied on March 26, 2014.
1
Despite appellant's attempt to appeal at that point, the record indicates that no
objections to the magistrate's decision were ever filed by either party.
Fairfield County, Case No. 13 CA 56 3
{¶6}. Appellant has not set forth any specific assigned errors. However, we find
contained in the text of his handwritten brief the following claims:
{¶7}. “I. DEFENDANT CANNOT ABIDE BY [THE TRIAL COURT'S] DECISION
THAT HE PAY SPOUSAL SUPPORT OF $312.50 PER MONTH PLUS PAY
PLAINTIFF'S ATTORNEY $500.00 OF HER FEES.
{¶8}. “II. THE AMOUNT [OF CREDIT CARD DEBT] SHOULD BE $5,420.00 ÷
2 = $2,710.00 AND NOT THE $2,109.50 LISTED BY [THE TRIAL COURT].
{¶9}. “III. BECAUSE OF ALL THE SACRIFICES THAT DEFENDANT HAS
MADE SINCE JUNE, 2007, HE HAS PAID $42,904.00 MORTGAGE PRINCIPAL,
$6,173.00 PROPERTY TAXES AND $5,837.00 INSURANCE AND FEELS HE
SHOULD BE ABLE TO RECOVER A PORTION OF THOSE AMOUNTS SINCE THEY
WERE MARITAL DEBTS.”
I., II., III.
{¶10}. As previously indicated herein, appellant did not properly object to the
magistrate's decision. Civ.R. 53(D)(3)(b)(iv) provides that “ * * * [a] party shall not assign
as error on appeal the court's adoption of any factual findings or legal conclusion * * *
unless the party has objected to that finding or conclusion * * *.” See, e.g., Stamatakis v.
Robinson, 5th Dist Stark No. 96CA303, 1997 WL 115878. We nonetheless recognize
that an appellant's failure to specifically object to a magistrate's decision does not bar
appellate review of “plain error.” See, e.g., Tormaschy v. Weiss, 5th Dist. Richland No.
00 CA 01, 2000 WL 968685, citing R.G. Real Estate Holding, Inc. v. Wagner, 2nd Dist.
Montgomery No. 16737, 1998 WL 199628. However, even under a plain error standard,
our review is effectively impeded because, although the record includes several
Fairfield County, Case No. 13 CA 56 4
financial statement exhibits, appellant has failed to provide this Court with a written
transcript of the trial to the magistrate. Pursuant to App.R. 9(B)(1), “[i]t is the obligation
of the appellant to ensure that the proceedings the appellant considers necessary for
inclusion in the record, however those proceedings were recorded, are transcribed in a
form that meets the specifications of App.R. 9(B)(6).” In such a situation, we generally
must presume the regularity of the proceedings below and affirm. See, e.g., State v.
Myers, 5th Dist. Richland No. 2003CA0062, 2004–Ohio–3715, ¶ 14, citing Knapp v.
Edwards Laboratories. (1980), 61 Ohio St. 2d 197, 400 N.E.2d 384.
{¶11}. This Court is cognizant that appellant is proceeding pro se, and, according
to his brief, suffers from a number of physical ailments, including COPD, hearing loss,
and arthritis. However, “[w]hile insuring that pro se appellants * * * are afforded the
same protections and rights prescribed in the appellate rules, we likewise hold them to
the obligations contained therein.” State v. Wayt, 5th Dist. Tuscarawas No.
90AP070045, 1991 WL 43005.
{¶12}. Appellant's aforementioned Assignments of Error are therefore overruled.
Fairfield County, Case No. 13 CA 56 5
{¶13}. For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Fairfield County, Ohio, is hereby
affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 0403
Fairfield County, Case No. 13 CA 56 6