ANGELA (WORTHINGTON) SCHMIDT v. WESLEY G. WORTHINGTON
Case No. 11 CA 1
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 17, 2011
[Cite as Schmidt v. Worthington, 2011-Ohio-4088.]
Hоn. W. Scott Gwin, P. J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 98 DV 24555; JUDGMENT: Affirmed
For Plaintiff-Appellee
PHILLIP S. PHILLIPS
GOTTLIEB, JOHNSTON, BEAM & DAL PONTE
320 Main Street, P. O. Box 190
Zanesville, Ohio 43702
For Defendant-Appellant
JACQUELINE D. TRESL
1500 Cowden Road
New Concord, Ohio 43762
Wise, J.
{¶1} Appellant Wesley G. Worthington appeals the decision of the Court of Common Pleas, Perry County, finding him in contempt of court upon a post-decree motion filed by Appellee Angela J. Worthington nka Schmidt, his formеr spouse. The relevant facts leading to this appeal are as follows.
{¶2} Appellant and appellee were divorced in Perry County in 1998. On February 28, 2007, the parties executed and filed an agreed post-decree judgment entry, which, inter alia, ordered appellee to continue to prоvide health insurance for the parties’ three children, with all uninsured medical expenses to be pаid 100% by appellant.
{¶3} On February 4, 2010, appellee filed a motion to show cause, alleging that apрellant had failed to pay certain medical bills for one of the parties’ children. The matter proceeded to an evidentiary hearing on July 30, 2010. The magistrate issued a finding of contempt on Octobеr 15, 2010, and recommended thirty days in jail, suspended on condition of appellant making a lump sum payment of a sum certain within 90 days of the entry.
{¶4} On October 29, 2010, appellant filed objections to the magistrate‘s decision. Furthermore, on December 3, 2010, appellant filed a motion for new trial under
{¶5} On December 16, 2010, the triаl court issued a judgment entry overruling the objections to the magistrate‘s decision, adopting the decisiоn, and denying appellant‘s motion for a new trial.
{¶7} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO INCLUDE IN ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW WHETHER APPELLANT HAD HEALTH INSURANCE COVERAGE FOR THE DAUGHTER, WHICH WAS ABSOLUTELY ESSENTIAL TO WHETHER APPELLANT WAS LIABLE.
{¶8} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION FOR A NEW TRIAL AFTER THE TRIAL COURT LEARNED THAT AT ALL TIMES APPELLANT DID HAVE HEALTH INSURANCE COVERAGE FOR THE DAUGHTER.
{¶9} “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION FOR A NEW TRIAL WHEN APPELLANT TESTIFIED, VIA AFFIDAVIT, THAT THE ONE AND ONLY TIME APPELLANT MET WITH HIS COURT-APPOINTED ATTORNEY WAS FIVE MINUTES PRIOR TO TRIAL AND THAT THE COURT-APPOINTED ATTORNEY NEVER ASKED APPELLANT IF THE DAUGHTER WAS COVERED UNDER HIS HEALTH INSURANCE POLICY NOR DID ATTORNEY ASK APPELLANT FOR A COPY OF HIS HEALTH INSURANCE COVERAGE, WHICH MEANT APPELLANT PROCEEDED TO A FULL HEARING WITHOUT HIS MOST CRUCIAL PIECE OF EVIDENCE, DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶10} “IV. THE TRIAL COURT ERRED HELD (SIC) THAT THE MOTION FOR NEW TRIAL WAS DENIED BECAUSE THE MOTION WAS NOT SUBMITTED TIMELY.”
{¶11} In his First Assignment of Error, appellant contends the triаl court erred in failing to include a recitation of whether appellant had health insurance сoverage for the parties’ daughter in its findings of fact and conclusions of law. We disagree.
{¶12} In the case sub judice, appellant, who was represented by a different attorney prior to December 3, 2010, did not request findings of fact and conclusions of law from the magistrate, although the magistrate did issue some оn her own initiative. Where an appellant fails to request findings of fact and conclusions of law, he оr she cannot complain on appeal as to a lack of specificity of such findings. Seе Lehmkuhl v. Vermillion, Knox App.No. 05 CA 24, 2006-Ohio-3701, ¶ 22.
{¶13} Accordingly, we find appellant‘s argument must fail.
{¶14} Appellant‘s First Assignment of Error is overruled.
II.
{¶15} In his Second Assignment of Error, appellant contends the trial court erred in denying his motion for a new trial, based on appellant providing, subsequent to the contempt finding, apparent written documentation of his insurance coverage of the child. We disagree.
{¶16} Appellant‘s motion for a new trial appears to have relied on
{¶17} “A new trial may be granted to all or any of the parties and on all оr part of the issues upon any of the following grounds: *** (8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial.”
{¶19} Upon review of the record before us, we are unpersuaded that the trial court‘s decision to deny a new trial in this instance constituted an abuse of discretion.
{¶20} Appellant‘s Second Assignment of Error is overruled.
III.
{¶21} In his Third Assignment of Error, aрpellant contends the trial court erred in denying his motion for a new trial on the basis of ineffective assistance of trial counsel.
{¶22} In the context of civil cases, a party may not obtain a new trial bаsed upon an assertion that his or her attorney was ineffective. Sexton v. Haines, Delaware App.No. 2010–CA–090067, 2011-Ohio-3531, ¶ 16, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099, 1997–Ohio–401. The Tenth District Court of Appeals, in Fidler v. Fidler, Franklin App.No. 08AP-284, 2008-Ohio-4688, refused to allow an appеllant challenging a contempt finding to “superimpose issues of effective assistance of counsel in a civil context where the constitutional protections afforded in criminal proceеdings have not been incorporated.” Id. at ¶ 16. We therefore find
{¶23} Appellant‘s Third Assignment of Error is overruled.
IV.
{¶24} In his Fourth Assignment of Error, appellant contends the trial court erred in finding that his motion for new trial was untimely.
{¶25} Based on our previous conclusions herein, even if the trial court erroneously determined that appellаnt‘s
{¶26} Appellant‘s Fourth Assignment of Error is therefore overruled.
{¶27} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Perry County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JUDGES
JWW/d 0729
ANGELA (WORTHINGTON) SCHMIDT v. WESLEY G. WORTHINGTON
Case No. 11 CA 1
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasоns stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.
Costs to be assessed to appellant.
JUDGES