Shumate v. ShumateShumate v. Shumate
Dated: October 18, 2010
BELFANCE, Judge.
{¶1} Appellant, Leroy Shumate, pro se, appeals from the journal entry of the Lorain County Court of Common Pleas, Domestic Relations Division, granting a motion for relief from judgment filed by appellee, Louise Shumate. This Court affirms.
BACKGROUND
{¶2} On December 12, 2007, Louise Shumate (“Wife“) filed a complaint for divorce from Leroy Shumate (“Husband“) and the trial court granted the divorce on August 29, 2008. On July 21, 2009, Wife filed a motion for relief from judgment, pursuant to
{¶3} Following a two-day hearing, the trial court found that, while married, Husband had deposited $15,000 with the Lorain County Clerk of Courts in connection with a civil action
{¶4} The trial court found that Husband‘s nondisclosure constituted a meritorious claim for Wife in that this undisclosed asset would have affected her share of spousal support and the property division. In light of Husband‘s misrepresentation, the trial court concluded that Wife was entitled to relief from judgment on the basis of
ABSENCE OF OFFICIAL TRANSCRIPT
{¶5} The appellate brief filed by Husband raises two primary issues. First, Husband contends that the domestic relations court erred in granting the motion for relief from judgment because the funds he had placed on deposit with the clerk of courts were not marital assets. Second, Husband challenges the trial court‘s granting of the motion for relief from judgment by disputing the finding of fraud in that he did not know the funds might have been “available” to him until after the divorce was granted and he has, in fact, not received the funds.
{¶6} As indicated above, an oral hearing was had before the trial judge on the motion for relief from judgment. Proper appellate review of Husband‘s legal arguments would require an evaluation of the evidence presented during the hearing before the trial court. It is an appellant‘s duty to ensure that the record, or the portion necessary for review on appeal, is filed
{¶7} In this case, the transcript of the motion hearing was not properly made a part of the record before this Court. Although Husband filed a purported transcript of the hearing with this Court, the court reporter failed to file an original certified transcript with the trial court. As we have previously stated, this Court “may not properly consider any transcript unless it is certified by an official or properly appointed court reporter.” White v. Yuhas, 9th Dist. No. 03CA0135-M, 2004-Ohio-5449, at ¶13, citing Akron v. Giermann, 9th Dist. No. 20780, 2002-Ohio-2650, at ¶8.
“(C) Transcript Made Record. No transcript of proceedings shall be considered as a part of the record on appeal unless one of the following applies:
“(1) The official court reporter has certified the transcript as provided in subsection (B) of this rule;
“(2) The record contains an entry of the trial court appointing the court reporter who has certified the transcript;
“(3) The transcript is a part of the original papers and exhibits filed in the trial court;
“(4) The transcript has been incorporated into an
App.R. 9(C) statement that has been approved by the trial court; or,“(5) The court of appeals has granted a motion to supplement the record with a transcript that was filed in a prior appeal.”
{¶9} Where the transcript of a hearing is necessary to resolve assignments of error, but such transcript is missing from the record, the reviewing court has “no choice but to presume the validity of the lower court‘s proceedings, and affirm.” Knapp, 61 Ohio St.2d at 199. In the instant matter, we are unable to resolve Husband‘s arguments without consideration of the evidence adduced at the hearing and, thus we are unable to determine whether the trial court committed reversible error. Accordingly, in the absence of a complete and adequate record, a reviewing court must presume the validity of the lower court‘s proceedings and affirm. Knapp, 61 Ohio St.2d at 199. See, also, Hartt v. Munobe (1993), 67 Ohio St.3d 3, 7; State ex rel. Fulton v. Halliday (1944), 142 Ohio St. 548, 549 (stating that the “proceedings of a trial court are deemed correct unless error affirmatively appears on the face of the record“); Buckingham, Doolittle & Burroughs v. Brady (Feb. 1, 1995), 9th Dist. No. 16835 (in the absence of a transcript from which error can be determined, we presume regularity in the proceedings).
{¶10} For these reasons, Husband‘s arguments are overruled.
{¶11} Wife also asks this Court to impose sanctions against Husband for filing a frivolous appeal, asserting that there is no reasonable question for review. See Cardservice Internatl., Inc. v. Farmer, 9th Dist. No. 24642, 2009-Ohio-3692, at ¶11. Although Husband‘s pro se brief is not skillfully prepared, we decline to find this appeal to be wholly frivolous, because Husband has raised substantive challenges to the propriety of the trial court‘s journal entry granting Wife
CONCLUSION
{¶12} Husband‘s arguments are overruled. The journal entry of the Lorain County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
EVE V. BELFANCE
FOR THE COURT
MOORE, J.
DICKINSON, P. J.
CONCUR
APPEARANCES:
LEROY SHUMATE, pro se, Appellant.
GINO PULITO, Attorney at Law, for Appellee.