IN THE MATTER OF THE DISSOLUTION OF THE MARRIAGE OF: STEPHEN C. EARLY VS. ALLISON R. EARLY nkа GLASS
CASE NO. 15 CO 0015
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 19, 2016
2016-Ohio-8413
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2008-DR-413. JUDGMENT: Affirmed.
For Petitioner-Appellee: Atty. Brian Macala, 117 South Lincoln Avenue, Salem, Ohio 44460
For Petitioner-Appellant: Atty. Benjamin Joltin, 106 South Broad Street, Canfield, Ohio 44406
OPINION
{¶1} Appellant, Allison R. Early (nka Glass) appeals the decision of the Columbiana County Common Pleas Court denying her motion to terminate or modify the shared parenting plan between her and Appellee, Stephen C. Early. Although presenting two assignments of error, Appellant raises essentially a single issue: whether the trial court abused its discretion in denying Appellant‘s motion to terminate or, in the alternative, modify the shared parenting plan regarding the designation of residential parent for school purposes.
{¶2} For the reasons expressed below, the issue raised by Appellant is meritless. The judgment of the trial court is affirmed.
Statement of the Case
{¶3} The parties were married on July 5, 1997 and have three children. The marriage was terminated by decree of dissolution filed on November 13, 2008. In the judgment entry the court approved a shared parenting plan that designated Appellant as residential parent of the children for school purposes.
{¶4} The parties have been engaged in prolonged litigation over the course of several years, and this matter has a torturous procedural history. On June 20, 2011, Appellant filed a motion for reallocation of parental rights and responsibilities, seeking modification of the shared parenting plan. The parties were referred to mediation. In December of 2011 the trial court was advised that the issues had been resolved in mediation. However, prior to having an agreement memorialized in writing and adopted by the trial court, Appellant filed a motion seeking to terminate or,
{¶5} While the matter was pending, Appellant filed a notice of intent to relocate and requested that the trial court conduct an in camera interview of the minor children. On September 11, 2012, Appellee filed a motion to modify the shared parenting plan duе to Appellant‘s expressed intention to relocate outside of Ohio with the minor children. Appellant filed a motion to show cause on November 20, 2012. A trial was held by the magistrate on January 31, 2013 and May 14, 2013. Appellant withdrew her notice of intent to relocate during that time рeriod. On July 2, 2013, a magistrate‘s decision was issued overruling Appellant‘s motion to show cause and denying the motion to terminate the shared parenting agreement. The magistrate did modify the shared parenting agreement regarding the parenting time schedule and child support.
{¶6} Aрpellant filed objections to the magistrate‘s decision on July 11, 2013. Appellant also filed a second notice of intent to relocate on August 30, 2013. The trial court set Appellant‘s objections to the magistrate‘s decision for a non-oral hearing. Appellant failed to request a transcript of the trial held before the magistrate. Appellant‘s objections were overruled in a judgment entry dated October 29, 2013. Appellant filed an appeal on November 26, 2013. On December 10, 2013, we remanded the matter to the trial court for the limited рurpose of clarifying the trial court‘s ruling on the objections.
{¶8} The trial court set all pending motions for trial. After commencement of trial, Appellant once again filed a motion seeking termination of the shared parenting рlan on July 28, 2014. Appellee filed to strike this motion on the basis that trial had commenced on the earlier motions filed by both parties. On the second day of trial, September 11, 2014, Appellant‘s motion was overruled by the trial court.
{¶9} While the matter was pending in the trial court, Appеllant filed a motion to suspend Appellee‘s parenting time. Subsequently, Appellee filed a motion seeking to hold Appellant in contempt for her failure to allow parenting time. On December 30, 2014, a magistrate‘s decision was issued denying all motions pending before thе court as of October 8, 2014. These included the competing motions to modify/terminate shared parenting and Appellant‘s requests to relocate with the children. Appellant filed objections to the magistrate‘s decision on January 12, 2015. Again, Appellant failed to file the magistrate‘s hearing transcript along with her objections. As the motion to suspend parenting time and the motion in contempt
{¶10} In a judgment entry dated March 16, 2015, the trial overruled Appellant‘s objections to the magistrate‘s decision and adopted that decision. Appellant filed her notice of appeal on April 15, 2015. On October 7, 2015, Appellee filed a motion to dismiss for lack of prosecution. On November 6, 2015, we dismissed the appeal. On November 24, 2015, Appellant filed her brief along with a motion for reconsideration and to reinstate the appeal. We reinstated the appeal on December 24, 2015. Appellee filed a motion for reconsideration of our decision to reinstate the appeal which was denied.
{¶11} On January 27, 2016, Appellee filed a motion for a limited remand to the trial court to adjudicate the motions to suspend parenting time and show cause that were still pending in the trial court. On March 2, 2016, we entered a limited remand only to allow hearings on these pending motions. As there was no stay of execution filed by either party and the proceedings in the triаl court would not be affected by the instant appeal, Appellee was instructed that this appeal would proceed. He then filed his brief in this matter, also substantially out of rule.
{¶12} Appellant asserts two assignments of error:
ASSIGNMENTS OF ERROR
WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT‘S MOTION TO TERMINATE
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE PARTIES’ MOTIONS TO TERMINATE THE SHARED PARENTING PLAN.
{¶13} In both assignments of error, Appellant argues the trial court erred in denying her motions to terminate or modify the shared parenting agreement. Appellant does not raise the issue of the denial of her motion to relocate out of state. Hence, this argument has been waived.
{¶14} At the outset, we must note that Appellant‘s brief contains a statement of the сase which outlines the lengthy and unusual procedural posture of the case. However, her statement of the facts recites only, “Appellant restates and reincorporates its Statement of Case as if fully rewritten.” (Appellant‘s Brf., p. 8.) Within the law and argument portiоn of her brief Appellant makes multiple references to factual issues and evidentiary testimony.
{¶15} As noted both at the trial court and by this Court, Appellant has completely failed to submit any transcripts of hearing in this matter. She has also failed to file any statement of the еvidence in this Court as required by
{¶16} In the absence of any transcript of the proceedings, we are limited to the record before us. The factual findings of the trial court are deemed established and we must presume the validity of the proceedings below.
{¶17}
{¶18}
The Court shall not modify a prior decree allocating parental rights and responsibilities for the care of the children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the timе of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the
modification is necessary to serve the best interеst of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies: (i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents undеr a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
{¶19} Appellant contends “[t]he evidence clearly showed the parties’ inability to co-parent; the minor children wished that said plan be terminated and that they be permitted to [attend] the Hubbard School System and the guardian-ad-litem recommended the termination of sаid shared parenting plan and most importantly believed that the termination of said plan and permitting the children to [attend] Hubbard schools was in their best interest.” (Appellant‘s Brf., p. 11.) Again, we are
{¶20} The triаl court noted in its March 16, 2015 judgment entry that the magistrate made 43 findings of fact relative to each of the factors set forth in
The Magistrate‘s extensive findings of fact are more than sufficient to support the conclusion that shared parenting continues to be in the best interests of the minor children. [Appellee] has had some difficulties with the oldest child * * *, but they are getting along better with the addition of some counseling. [Appellee] points to the protracted legal battle with [Appellant] as a factor negatively impacting the relationship between the parents and their children. It is evident that the Magistrate agrees, finding that the minor children are the only casualties in the parents’ ongoing legal battle.
(3/16/15 J.E., p. 3.)
{¶21} The trial court determined:
Overbalancing those facts, however, are the findings of fact relative to the continuation of shared parenting and the best interests of the minor children. On this issue the Magistrate‘s findings include that the only changed circumstance in the life of the children or the parents is that [Appellant] has relocated to Hubbard. Neither party presented the
Magistrate with a compelling reasоn to terminate the shared parenting plan and the Magistrate found no such reason.
Id. at pp. 3-4.
{¶22} After reviewing the magistrate‘s factual determinations and without the ability to review the transcript of the hearing on this matter, the court stated that, “[b]ased on the foregoing and its independent rеview pursuant to
{¶23} It is abundantly apparent that Appellant was making a factual argument to the trial court. Her utter failure to provide the court with any evidence to support her argument by means of a transcript of hearing left the trial court with no alternative but to uphold the factual findings of the magistrate. Likewise, on appeal, because Appellant did not file the transcripts necessary to review factual findings to the trial court, we are unable to review her factual arguments. RBS Citizens, NA v. Sharp, 7th Dist. No. 13 MA 11, 2015-Ohio-5438, 47 N.E.3d 170, ¶ 27 (failure to provide trial court with the transcripts of the proceedings before the magistrate limits both the trial court and this Court to reviewing only questions of law); Lipari v. Tanoff, 7th Dist. No. 13 MA 17, 2014-Ohio-1176, ¶ 13-14 (“the failure to file a transcript with оbjections to a magistrate‘s decision waives all factual challenges on appeal“), citing State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995) (where the objecting party fails to provide the trial court with the transcript of the proceedings before the magistrate, an appellate court is prеcluded from
{¶24} Accordingly, based upon our review of the limited record before us, we find no error on the part of the trial court. Appellant‘s assignments of error are without merit and the judgment of the trial court is hereby affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.