Croft v. Osborne

[Cite as Croft v. Osborne, 2013-Ohio-5005.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EVELYN M. CROFT (CUNNINGHAM) JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13 CA 20
RUSSELL T. OSBORNE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 99 JI
00220
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 12, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW J. WARHOLA
110 North 7th Street
Cambridge, Ohio 43725
Guernsey County, Case No. 13 CA 20 2
Wise, P. J.
{¶1} Appellant Russell T. Osborne appeals from the decision of the Court of
Common Pleas, Juvenile Division, Guernsey County, which found him in contempt of
court for failure to pay toward his child support and arrearage obligations. The relevant
facts leading to this appeal are as follows.
{¶2} Appellant is the father J.O., born in 1997.1 On November 23, 1998, via an
administrative order adopted by the trial court, appellant was ordered to pay support for
J.O. through the Guernsey County CSEA. Appellant thereafter repeatedly failed to pay
support, resulting in an arrearage of more than $9,700.00. Appellant is also still under a
court order to pay $10.20 per month toward his arrearages. In February 2012, appellant
was ordered to serve 30 days in jail for contempt.
{¶3} Guernsey County CSEA filed another motion to show cause (contempt) on
January 14, 2013. The matter proceeded to a hearing before a magistrate on March 4,
2013. The magistrate, on March 6, 2013, found appellant in contempt and ordered him
to serve 30 days in jail, with the main purge provision of appellant paying his $9,712.99
arrearage amount down to no more than $9,000.00 by May 31, 2013.
{¶4} Appellant timely filed an objection to the decision of the magistrate. On
April 15, 2013, the trial court issued a judgment entry adopting the decision of the
magistrate.
1
The companion cases before us indicate that appellant has another child who was
born in 1997 and also has the initials “J.O.” Support for that child is the subject of a
different case in the Guernsey County Juvenile Court.
Guernsey County, Case No. 13 CA 20 3
{¶5} Appellant filed a notice of appeal on May 14, 2013.2 He herein raises the
following two Assignments of Error:
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
APPELLANT IN CONTEMPT OF COURT WHEN APPELLANT PRESENTED
UNREBUTTED TESTIMONY AND EVIDENCE THAT IT WAS NOT IN HIS POWER TO
OBEY THE CHILD SUPPORT ORDERS OF THE COURT.
{¶7} “II. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW
AND ERRED IN IMPOSING PURGE CONDITIONS UPON APPELLANT THAT WERE
UNREASONABLE AND NOT POSSIBLE FOR HIM TO SATISFY WITHIN THE TIME
LIMITS ORDERED.”
I., II.
{¶8} In his First and Second Assignments of Error, appellant contends the trial
court erred and/or abused its discretion in finding him in contempt of court and in
imposing certain purge conditions regarding the contempt ruling.
{¶9} As an initial matter, we are compelled to review the status of the transcript
in this case. We have held on numerous occasions that 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. See, e.g., State v.
Leite (April 11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court
has determined that in such a situation, “* * * the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate record.” See State
ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St. 3d 728, 730, 654 N.E.2d
2
CSEA has not filed a response brief in this appeal.
Guernsey County, Case No. 13 CA 20 4
1254. “[T]he reviewing court is only permitted to determine if the application of the law
was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist.
Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18. Furthermore, “[t]here is no abuse of
discretion on the part of the trial court in its decision to overrule objections to factual
findings where the party objecting has failed to file a transcript.” Remner v. Peshek
(Sept. 30, 1999), Mahoning App.No. 97–CA–98, 1999 WL 803441 (additional citation
omitted).
{¶10} In the case sub judice, the transcript of the magistrate’s hearing appears
to have been prepared in time for the present appeal, but not for the trial court’s review
of appellant’s objection to the decision of the magistrate. Said transcript has on its cover
only a “Court of Appeals” file-stamp date of July 23, 2013, several months after the trial
court’s April 15, 2013 ruling on the objection. Furthermore, the trial court stated in that
ruling: “The respondent requested this court to waive the requirement of a transcript
and requested that this court review the audio tape of the proceedings of March 4,
2013.” Judgment Entry at 1. Finally, the trial court docket shows no request or praecipe
for the preparation of a transcript prior to the notice of appeal to this Court. We therefore
conclude that appellant's objection to the decision of the magistrate was not
accompanied by a transcript of the proceedings before the magistrate. Furthermore,
the trial court did not specifically grant leave to allow presentation of the evidence via
alternative means as set forth in Juv.R. 40(B)(3)(b)(iii).
{¶11} Contempt has been defined as the disregard for judicial authority. State v.
Flinn (1982), 7 Ohio App. 3d 294, 455 N.E.2d 691. “A finding of civil contempt does not
require proof of purposeful, willing, or intentional violation of a trial court's prior order.”
Guernsey County, Case No. 13 CA 20 5
Townsend v. Townsend, Lawrence App. No. 08CA9, 2008–Ohio–6701, ¶ 27, citing
Pugh v. Pugh (1984), 15 Ohio St. 3d 136, 140, 472 N.E.2d 1085. In this instance, the
magistrate determined that appellant had failed to pay as ordered, resulting in an
arrearage of $9,712.99 as of February 28, 2013. Appellant essentially urges that based
on the exhibits presented to the magistrate documenting his prior felony convictions,
incarcerations, and sex offender status, he has no ability to pay on his arrearage
obligation and purge provisions. However, upon our limited review under the
circumstances of this case (Eiselstein, supra), we find no error or abuse of discretion in
the trial court's application of the law to the magistrate's findings of fact.
{¶12} Appellant's First and Second Assignments of Error are therefore
overruled.
{¶13} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN
JWW/d 1009
Guernsey County, Case No. 13 CA 20 6
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EVELYN M. CROFT (CUNNINGHAM) :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RUSSELL T. OSBORNE :
:
Defendant-Appellant : Case No. 13 CA 20
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is
affirmed.
Costs assessed to appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN