Haverdick v. HaverdickHaverdick v. Haverdick
Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2004 DR 417.
Judgment: Reversed and remanded.
Michael A. Scala, 244 Seneca Avenue, N.E., P.O. Box 4306, Warren, OH 44482 (For Plaintiff-Appellant).
Gary R. Rich, 342 Mahoning Avenue, N.W., P.O. Box 4010, Warren, OH 44482-4010 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Madeline R. Haverdick, n.k.a., Madeline R. Prezioso, appeals from the judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, adopting the magistrate’s decision denying her motion for contempt. For the reasons discussed below, we reverse and remand.
{¶2} In September of 2004, appellant filed a complaint for legal separation from appellee, Frank Haverdick. The case was initially settled by way of stipulation,
{¶3} “*** The marital residence *** is subject to a lien known as William R. Biviano, Biviano Law Firm vs. Madeline Haverdick [and] is to be in the possession of Defendant Frank Haverdick. Defendant, Frank Haverdick shall pay to Plaintiff as and for her share of marital equity the sum of $60,000.00 payable immediately. Plaintiff, Madeline Haverdick, shall have 30 days from the date of the closing to vacate the premises. The lien attributable to Attorney Biviano shall be paid for out of Madeline Haverdick’s share.
{¶4} “*** Both parties having agreed that the personal property and household goods have already been divided, said division shall become permanent without any further claim of one against the other.”
{¶5} Appellee paid appellant the sum of $60,000 on April 3, 2009. On May 7, 2009, 33 days after tendering payment, appellee changed the locks on the residence, thereby taking possession of the property and all contents within the home.
{¶6} On May 11, 2009, appellant demanded appellee appear before the court and show cause why he should not be held in contempt for failing to comply with the final divorce decree. Additional discovery took place after which the matter came on for trial before the magistrate. The magistrate took two days of testimony and, on January
{¶7} Appellant now appeals and alleges two assignments of error. We shall address these arguments out of order. For her second assignment of error, appellant asserts:
{¶8} “The trial court erred, to the detriment of appellant, by refusing to grant appellant additional time to prepare a transcript.”
{¶9} Appellant asserts the trial court abused its discretion in adopting the magistrate’s decision without affording her sufficient time to file a transcript of the proceedings in order to further develop her objections to the magistrate’s findings and conclusions. We agree.
{¶10} Appellant filed timely objections to the magistrate’s decision, objecting not only to the magistrate’s ultimate legal conclusions, but also certain factual findings concerning the credibility of appellant’s testimony. Two days later, the trial court adopted the magistrate’s decision, ruling:
{¶11} “The Court conducted an independent review of the record, the Motion and the Magistrate’s decision in dispute. Based on that review,
{¶12} “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
{¶13} “1) The Objections are overruled on the Merits, and further;
{¶14} “2) All orders previously issued by the Magistrate to remain effective.
{¶16} We find two basic problems with the trial court’s judgment. First of all, the trial court did not possess a transcript of the testimony heard by the magistrate. Without the aid of a transcript, the trial court could not have conducted an independent review of appellant’s documentation and testimony.
{¶17} In addition to this error, the trial court erred in ruling on appellant’s objections without allotting her the requisite opportunity to obtain transcripts. Not only were the transcripts necessary to support the objections already before the court, appellant also sought the transcripts to “make additional arguments and objections in the case.”
{¶18} “Objection to magistrate’s factual finding; transcript or affidavit. An objection to a factual finding, whether or not specifically designated as a finding of fact under
{¶19} Here, appellant’s objections included a request that the court allow her time to obtain transcripts. Not only was a transcript necessary to support appellant’s objections to the magistrate’s factual findings, appellant represented she was seeking a transcript to supplement her objections with additional objections and argumentation. When the court overruled appellant’s objections two days after they were filed, it did so without allowing appellant the thirty days in which to obtain and file a transcript of the hearing in violation of
{¶20} Appellant’s second assignment of error is sustained.
{¶21} For her first assignment of error, appellant alleges:
{¶23} Appellant’s first assignment of error challenges the trial court’s adoption of the magistrate’s substantive findings and conclusions. Because we hold the trial court erred by not allowing appellant a reasonable time to prepare a transcript with which she could support and/or supplement her objections, we hold it is unnecessary to address the merits of appellant’s first assignment of error at this time.
{¶24} For the reasons discussed above, the judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, is reversed and the cause is remanded to the trial court for further proceedings in accordance with the law and consistent with this opinion.
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
concur.