Smith v. TreadwellSmith v. Treadwell
Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2008 CV 02306.
Judgment: Affirmed.
Robert E. Somogyi, Hans C. Kuenzi Co., L.P.A., Skylight Office Tower, #410, 1660 West Second Street, Cleveland, OH 44113 (For Plaintiff-Appellee).
John E. Treadwell, Jr., pro se, 15911 Cоrsica Avenue, Cleveland, OH 44110 (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, John E. Treadwell, Jr., appeals from the judgment of the Lake County Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision regarding appellant’s child suppоrt obligation. For the reasons below, we affirm.
{¶2} On April 11, 2008, appellee gave birth to the parties’ only child together. Appellee is legal custodian of the child. In addition to the child he had with appellee, appellant has threе other children with two separate women. The record indicates he is the obligor on support orders for all children.
{¶3} On November 24, 2008, appellee filed a complaint for custody and child support. Appellant filed no responsive pleadings. Appellant waived his right to counsel and the matter proceeded to trial before the magistrate on May 13, 2009. Testimony was taken and exhibits submitted without objection. The magistrate’s decision was filed on August 28, 2009. After considering the evidence introduced at trial, the magistrate recommended that appellant pay appellee ongoing child support in the amount of $281.50 per month. The magistrate further determined that appellant’s actual arrearages as of June 30, 2009 totaled $5,081.08. The magistrate recommended appellant pay down the arrearage at a rate of $37.12 per month until paid in full. The magistrate’s decision concluded with the following advisement:
{¶4} “A party shall not assign as error on appeal the court’s adoption of any finding of fact or conclusion of law in that decision unless the party timely and specifically objects to that finding or conclusion as required by *** Juv.R. 40(E)(3)***.”1
{¶5} On September 9, 2009, instead of filing objections as required by the juvenile rules, appellant sent an ex parte letter to the magistrate. In the letter, appellant sought a “modification” of the magistrate’s recommendation because, in his estimation, “the court did not have accеss to pertinent information that should have been considered when calculating the appropriate support amount.” On September 15, the trial court responded to appellant’s correspondence advising him that “[t]he сourt can only be addressed in writing in the form of a motion or in open court.” The court
{¶6} On September 28, 2009, a month after the magistrate’s decision was issued, appellant filed a pleading entitled “Motion to Obect [sic] to Magistre’s [sic] Decision.” Similar to his letter, appellant asserted his belief that the magistrate did not possess pertinent information that should have been considered when calculating the appropriate support amount. At no point did appellant order a transcript of the proceeding upon which the magistratе’s decision was based. On October 2, 2009, the trial court entered a judgment denying appellant’s motion as untimely. On the same date, the trial court filed a separate judgment entry adopting the magistrate’s decision in full.
{¶7} Appellant now appeals assigning three errors for our review. His first assignment of error provides:
{¶8} “The trial court erred to the prejudice of the defendant-appellant by denying his motion to object to magistrate’s decision.”
{¶9} Appellant claims the trial court сommitted reversible error by denying his motion to object after it led him to believe such motion would be considered if it were filed as a motion and served on all parties. Appellant contends the trial court’s advisement implied it was awarding him an extension of time to file his objections pursuant to
{¶10} Nothing in the court’s response to appellant’s letter indicates it would consider the substantive merits оf his request if he filed a proper motion. The letter stated, in very general terms, the court would consider appellant’s request if it was filed in the form of a motion and it was served on all parties. When appellant filed his eventual motion, thе court considered the same and concluded it was untimely. This action did not run afoul of the September 15, 2009 correspondence.
{¶11} Moreover, appellant fails to acknowledge that the correspondence speсifically directed appellant to consult with an attorney if he needed additional information or clarification relating to court procedures. Appellant contends that he understood the September 15, 2009 correspоndence to mean that the court would consider the merits of his request if he filed it in motion form. However, appellant’s lay interpretation of the letter is irrelevant; in order to be certain that he was following proper procedures, he was obligated to seek legal counsel and obtain a professional opinion regarding his proper course of action. Nothing in the record indicates he proceeded in this fashion.
{¶12} Finally, and perhaps most importantly, the correspondence upon which appellant relies was not a judgment or ruling. At most, the letter was a courtesy mailing sent by the Lake County Juvenile Court’s Chief of Staff indicating the court does not accept requests to modify deсisions or orders unless they are properly submitted. It is
{¶13} Appellant’s first assignment of error is overruled.
{¶14} Appellant’s second assignment of error provides:
{¶15} “The trial court erred to the prejudice of defendant-appellant when it relied upon incomplete information whеn determining the defendant’s-appellant’s monthly child support obligation.”
{¶16} In support of his second assignment of error, appellant claims the trial court erred in failing to consider his “true financial status” in light of the three, preexisting support orders for which he was already responsible as an obligor. Had it done so, he maintains
{¶17} We again emphasize that appellant failed to file timely objections to the magistrate’s decision. Moreover, at no point did he move the court for an extension of time for filing his objections pursuant to
{¶18} However, even if appellant had properly presеrved his argument through filing timely objections, the record indicates the trial court did indeed consider his pre-
{¶19} Moreover, it is within the discretion of the trial court to deviate from the child support guidelines. See
{¶20} The record indicates the trial court did not base its decision upon incomplete financial information, as appellant alleges. Moreover, the trial court is not obligated to deviate from the child support guidelines. Hence, appellant was not entitled to a downward deviation from the amount calculated by those guidelines. Finally, because appellant failed to file a transcript, we have no way of knowing the full scope of the evidence considered by the magistrate at the hearing, e.g., what monetary amount appellee allеged would be necessary to cover the child’s current needs. Under such circumstances, we must presume the testimony and other evidence submitted during the proceedings below support the award. See, e.g., Allen v. Allen, 11th Dist. No. 2009-T-0070, 2010-Ohio-475, at ¶26 (Without a transcript of proceedings, a reviewing court must presume regularity of the proceedings in the trial court). Given these factors, we perceive no plain error in the trial court’s determination.
{¶21} Appellant’s second assignment of error is overruled.
{¶22} Appellant’s third assignment of error asserts:
{¶23} “The trial court erred in determining that the magistrate’s decision was proper in all respects and adopting it in full.”
{¶24} Under his final assignment of error, appellant asserts the trial court erred in adopting the magistrate’s decision because it failed to provide “special provisions” for his parenting time or visitation. We disagree.
{¶25} When no transcript or affidavit is provided to the trial court in support of objections to a magistrate’s decision, an appellate court is limited to determining whether or not the trial court abused its discretion in adopting the magistrate’s decision. Gorombol v. Gorombol, 11th Dist. No. 95-L-036, 1996 Ohio App. LEXIS 3366, *4. In the absence of a transcript from a hearing before a magistrate, the scope of a trial court’s review of the factual findings in a magistrate’s decision “is limited to determining whether those findings аre sufficient to support *** the conclusions of law ***” reached by the magistrate. In re Estate of Thut, 11th Dist. No. 2004-L-138, 2005-Ohio-4647, at ¶28. (Citation omitted). Under such circumstances, therefore, an appellate court will only reverse if it finds the trial court adopted the magistrate’s decision when there was clear error of law or other defect on its face.
{¶26} Here, there is nothing in the record indicating appellant filed a motion for custody or visitation. Rather, the only matter before the court was appellee’s request to determine custody and establish a child support order. Because appellant failed to properly raise the issues of custody and visitation, the trial court was not required to consider them. We therefore hold the trial court did not err in adopting the magistrate’s decision.
{¶27} Appellant’s final assignment of error is overruled.
{¶28} For the reasons discussed in this opinion, it is the judgment of this court that the judgment of the Lake County Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision is affirmed.
MARY JANE TRAPP, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.