Pallone v. Pallone
2016 Ohio 7066
| Ohio Ct. App. | 2016Background
- Roman and Denise Pallone divorced by agreed decree and shared parenting plan in 2006; later disputes spawned motions to modify, contempt motions, discovery disputes, and guardian ad litem issues.
- Extensive magistrate hearings occurred over more than 10 days in 2014; magistrate issued a decision on February 6, 2015 which the trial court adopted.
- Roman filed 35 objections to the magistrate's decision and sought a transcript at public expense and alternatives under Civ.R. 53(D)(3)(b)(iii), supported by an affidavit of indigency.
- The trial court denied Roman’s motion for transcript at public expense, denied alternatives to a transcript (finding a transcript was available), and later overruled objections for failure to file a complete transcript.
- On appeal, the Tenth District reversed and remanded, finding the trial court erred by not credibly evaluating the affidavit of indigency, not permitting alternatives where appropriate, and by failing to review the partial transcripts Roman did submit.
Issues
| Issue | Plaintiff's Argument (Denise) | Defendant's Argument (Roman) | Held |
|---|---|---|---|
| Whether trial court properly denied alternatives to a full transcript under Civ.R. 53 | Trial court argued transcript was available so alternatives unnecessary | Roman argued he was indigent, transcript unavailable, so he should be allowed to file an affidavit of evidence or use alternative technology | Reversed: court must assess credibility of indigency affidavit and, if credible, permit alternatives or affidavit and consider partial transcript |
| Whether trial court abused discretion by refusing to consider objections without a complete transcript | Trial court required complete transcript per local rule | Roman submitted partial transcripts and sought leave to supplement | Reversed: trial court must review partial transcripts and determine if they suffice to resolve objections |
| Proper procedure when transcript is producible but party claims indigency | Denise relied on availability of transcript (party could produce) | Roman claimed inability to pay (transcript effectively unavailable) | Court held trial court erred by not determining credibility of indigency; if indigent, alternatives must be considered |
| Effect of errors on remaining assignments of error | Denise implicitly argued merits support adoption of magistrate decision | Roman raised 18 additional assignments | Court found those assignments moot given reversal on the transcript/indigency issue and remanded for further proceedings |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (when portions of transcript necessary to review errors are omitted, reviewing court must presume regularity and affirm on those errors)
- Phillips v. Phillips, 113 Ohio App.3d 868 (Ohio App. 1996) (partial transcript considered adequate where it contains the evidence necessary to decide objections)
- State Farm Mut. Auto. Ins. Co. v. Fox, 182 Ohio App.3d 17 (Ohio App. 2009) (trial court abuses discretion when it adopts findings without reviewing submitted partial transcript)