2013 Ohio 457
Ohio Ct. App.2013Background
- : Marriage on November 14, 1998 and separation on November 14, 2009.
- : Michelle Rothwell filed for divorce December 30, 2009 naming Mark Rothwell and Grove City Garage Door, Inc.
- : Mark Rothwell answered February 11, 2010 with counterclaims.
- : Final four-day hearing before magistrate occurred April 25, 26, June 9, and June 10, 2011; closing arguments were written.
- : Magistrate issued decision October 28, 2011 dividing assets and debts; objections were filed by both sides.
- : Recording of the four days was not available due to equipment malfunction; trial court noted no party had requested recording; transcript later unavailable; appeal proceeded without a transcript or App.R. 9(C)/(D) statement of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to record the four-day hearing requires remand | Rothwell argues Sup.R. 11 requires recording in civil matters upon request | Rothwell contends failure to record means misstep requiring remand | No remand; recording not mandatory absent a request; alternatives exist under App.R. 9 |
| Whether the trial court erred in relying on magistrate’s findings without transcript or evidentiary affidavit | Rothwell asserts lack of transcript/affidavit precludes review of asset division | Rothwell failed to provide transcript or affidavit as Civ.R. 53(D)(3)(b)(iii) requires | No reversible error; absence of transcript/affidavit limits review; court presumes regularity |
| Whether the asset division is reviewable absent transcript | Rothwell claims misapplication of evidence supporting asset division | Rothwell did not provide appellate evidence alternative under App.R. 9 | Assignment of error overruling; record unavailable precludes detailed review; judgment affirmed |
Key Cases Cited
- Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728 (1995) (transcript required for appellate review when objections cite factual findings)
- In re Maxwell, 4th Dist. No. 05CA2863, 2006-Ohio-527 (2006) (appellate review limited when no transcript or affidavit provided)
- Purpura v. Purpura, 33 Ohio App.3d 237 (1986) (affidavit or transcript required for challenged findings)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980) (appellant must reference record to prove error)
- Eastwood v. Eastwood, No. 06-CA-0066, 2007-Ohio-3096 (2007) (review constraints when record is incomplete)