MICHELLE L. ROTHWELL v. MARK E. ROTHWELL, ET AL.
Case No. 12CA6
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
Released: 01/29/13
2013-Ohio-457
DECISION AND JUDGMENT ENTRY
Kinsley F. Nyce, Columbus, Ohio, for Appellant, Mark E. Rothwell.
Jacqueline L. Kemp, Kemp, Schaeffer & Rowe Co., L.P.A., Columbus, Ohio, for Appellee.
McFarland, J.
{¶ 1} Appellant, Mark E. Rothwell, appeals the judgment entry of the Pickaway County Court of Common Pleas, Division of Domestic Relations, issuing a decree of divorce as between Appellant, and Appellee, Michelle L. Rothwell. On appeal, Appellant essentially contends in his first and second assignments of error that the trial court erred in failing to record the four day final divorce hearing. Appellant further contends in his third assignment of error that the trial court’s division of assets and liabilities of the parties was in contravention of the evidence presented at the final
FACTS
{¶ 2} The parties were married on November 14, 1998, and separated on November 14, 2009. Appellee, Michelle Rothwell, filed a complaint for divorce on December 30, 2009, naming as defendants her husband and Appellant herein, Mark Rothwell, as well as Grove City Garage Door, Inc., the company jointly owned by the parties. Appellant, Mark Rothwell, filed his answer and counterclaims to the complaint for divorce on February 11, 2010. Discovery between the parties ensued and the matter was scheduled for a final divorce hearing before the magistrate beginning on April 25,
{¶ 3} On October 28, 2011, a magistrate’s decision, including findings of fact and conclusions of law, was filed which divided the parties’ marital assets and debt. Appellant filed his objections to the magistrate’s decision on November 14, 2011. Appellee in turn filed her response to Appellant’s objections, as well as her own objections. A review of the record reveals that Appellant did not request or file a copy of the transcript in conjunction with the filing of his objections. Further, in the absence of the transcript, Appellant also failed to file an affidavit of the evidence pursuant to
“It is noted that a transcript of the final hearing was not requested by the Defendant. Lacking a transcript, this Court will rely on the findings of fact outlined in the Magistrate’s Decision and the evidence contained in the file.”
{¶ 4} Appellant filed his notice of appeal on March 27, 2012, indicating in his statement, praecipe, and notice to the court reporter that he intended file a complete transcript of the proceedings. Subsequently, on April 11, 2012, the court reporter filed an affidavit stating that a record of the four days of the final divorce hearing was not available, due to a malfunction of the recording equipment. Further, a notice of transmission of the record was filed on May 8, 2012, indicating that it did not include a transcript of the proceedings. Appellate briefs were filed and the matter was heard on oral argument August 30, 2012. Then, on September 5, 2012, Appellant filed a motion requesting that he be permitted to file a statement of the evidence on appeal. By a magistrate’s order dated September 12, 2012, this Court initially granted Appellant’s motion; however, upon the objection of Appellee and after further consideration, we denied Appellant’s motion, because the matter had already been submitted for decision. Thus,
ASSIGNMENTS OF ERROR I AND II
{¶ 5} Because Appellant’s first and second assignments of error advance essentially the same argument, we will address them together. As stated above, taken together, Appellant’s first and second assignments of error essentially contend that the trial court erred in failing to record the parties four day final divorce hearing. In support of this argument, Appellant cites us to the Supreme Court of Ohio
{¶ 6}
{¶ 7} The Tenth District Court of Appeals recently addressed an argument similar to the one raised by Appellant in Franklin v. Franklin, 10th Dist. No. 11AP-713, 2012-Ohio-1814. In response, the Franklin court determined that
{¶ 9} For example,
“If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer
available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App.R. 10 and the appellee may serve on the appellant objections or propose amendments to the statement within ten days after service of the appellant’s statement; these time periods may be extended by the court of appeals for good cause. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant toApp.R. 10 , and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.”
{¶ 10} Our review of the record before us indicates that the four day final divorce hearing held before the magistrate was not recorded. Based upon the affidavit of the court reporter, it appears there was a malfunction
{¶ 11} As already set forth,
{¶ 12} In light of the foregoing, because there was no clear mandate requiring the magistrate to make a record of the proceedings, we cannot conclude that the trial court erred. Further, even assuming arguendo that the trial court did err in failing to make a record of the proceedings, there were alternatives to recreate the record available to Appellant under
ASSIGNMENT OF ERROR III
{¶ 13} In his third assignment of error, Appellant contends that the trial court erred as a matter of law and in conflict with the evidence in the grant of assets and liabilities of the parties, and in contravention of the evidence presented at the final hearing. Appellant claims that lay and expert trial testimony was not utilized adequately by the magistrate. Appellant also mentions this Court’s inability to consider this argument absent the trial testimony.
{¶ 14} Appellee responds by initially pointing out the fact that Appellant has failed to properly brief or present any argument regarding this assignment of error. We agree. Appellant has not separately argued each assignment of error. In fact, while the purported assignments of error each number several pages in length, there is only one argument section which simply appears to summarize the role of the appellate court in general.
{¶ 15} The only information in Appellant’s seventeen page brief that provides any specific information regarding the trial court’s division of the parties’ assets and liabilities appears in the statement of the facts section, and consists of several bullet points alleging inaccuracies, without any accompanying explanation or argument.
{¶ 16} In his third assignment of error, Appellant appears to complain that the magistrate, whose decision the trial court adopted, erred in its division of the parties’ assets and liabilities. Initially, we must address the standard of review.
{¶ 17} Our review of the record further reveals that Appellant also failed to file an affidavit of the evidence, which alternative was required under
{¶ 18} In addition, not only did Appellant fail to provide an affidavit of the evidence in support of his objections to the magistrate’s decision at the trial court level, he also failed to file a timely statement of the evidence pursuant to
{¶ 19} Since there was no transcript of the hearing or some other acceptable alternative as set out in
{¶ 20} Having failed to find merit in any of the assignments of error raised by Appellant, the decision of the trial court is affirmed.
Kline, J., concurring.
{¶ 21} I respectfully concur in judgment only. In my view, the relevant issue is Appellant’s failure to comply with
{¶ 22} Accordingly, I respectfully concur in judgment only.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court, Domestic Relations Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment Only with Opinion.
For the Court,
BY:
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.