[Cite as Mizer v. Mizer, 2014-Ohio-4488.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JULIE C. MIZER : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JOSEPH E. MIZER : Case No. 2014CA0008
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
20640178
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 8, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT A. SKELTON BRIAN W. BENBOW
309 Main Street 605 Market Street
Coshocton, OH 43812 Zanesville, OH 43701
Coshocton County, Case No. 2014CA0008 2
Farmer, P.J.
{¶1} On January 1, 2003, appellant, Joseph Mizer, and appellee, Julie Mizer,
were married. One child was born as issue of the marriage, Jared born September 10,
2004. On June 16, 2006, the Child Support Enforcement Agency (hereinafter "CSEA")
filed a complaint to establish child support in the Juvenile Division of the Court of
Common Pleas for Coshocton County. On July 3, 2006, appellee filed a complaint for
custody, also in the Juvenile Division. By consent judgment filed August 8, 2006,
appellee was named the residential parent and legal custodian of the child and child
support was ordered.
{¶2} On September 29, 2006, appellee filed a complaint for divorce in the
General Division (Case No. 2006DV0712).
{¶3} On June 4, 2007, appellee filed a motion in the Juvenile Division to
transfer jurisdiction of the Juvenile Division case to the General Division because of the
pending divorce complaint. By judgment entry filed June 11, 2007, the trial court denied
the motion.
{¶4} On April 16, 2007, the divorce complaint was amended to a dissolution
petition. A shared parenting plan was filed on April 17, 2007. On June 4, 2007, the
dissolution petition was converted back to a divorce complaint. A final decree of divorce
was issued on October 31, 2007. Following the divorce, the parties moved separately
to Licking County, Ohio.
{¶5} On April 17, 2013, appellant filed a motion in the General Division to
terminate the shared parenting plan, and sought re-designation of residential parent.
On May 7, 2013, appellee filed the same motion.
Coshocton County, Case No. 2014CA0008 3
{¶6} On April 19, 2013, appellant filed a motion in the Juvenile Division to
modify child support.
{¶7} On June 13, 2013, appellant filed a motion in the General Division to
transfer jurisdiction of the Juvenile Division case to the General Division. By judgment
entry filed June 18, 2013, the trial court denied the motion.
{¶8} On June 17, 2013, appellant filed a motion in the Juvenile Division to
transfer jurisdiction of the Juvenile Division case to the General Division. By judgment
entry filed June 18, 2013, the trial court denied the motion.
{¶9} On June 24, 2013, appellant filed a shared parenting plan in the Juvenile
Division, contemporaneously with a motion to terminate the previous shared parenting
plan, and sought re-designation of residential parent.
{¶10} On July 10, 2013, the parties dismissed all pending motions in the General
Division.
{¶11} On July 17, 2013, appellee filed a motion in the Juvenile Division to
increase child support.
{¶12} Hearings before a Juvenile Division magistrate were held on October 15,
and December 10, 2013. By decision filed January 31, 2014, the magistrate named
appellee residential parent, denied shared parenting, and increased child support. Both
parties filed objections. By judgment entry filed March 11, 2014, the trial court denied
the objections, save for the issue of parenting time which both parties had objected to,
made specific modifications to the parenting time schedule, and adopted the
magistrate's decision.
Coshocton County, Case No. 2014CA0008 4
{¶13} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶14} "THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO
HEAR THIS MATTER HEREIN, AS THE COSHOCTON COUNTY COMMON PLEAS
COURT, JUVENILE DIVISION, FIRST EXERCISED JURISDICTION OVER A CHILD
SUPPORT MATTER, WHICH DID NOT GIVE THE JUVENILE DIVISION EXCLUSIVE
JURISDICTION OVER THE PARTIES FROM THAT DATE FORWARD AS TO ALL
ISSUES. THE TRIAL COURT HAD NO AUTHORITY TO TERMINATE THE PARTIES'
SHARED PARENTING PLAN ISSUED BY THE COSHOCTON COUNTY COMMON
PLEAS COURT, GENERAL DIVISION, PURSUANT TO A LATER DIVORCE. THE
ORDERS ISSUED BY THE TRIAL COURT ARE ACCORDINGLY VOID."
II
{¶15} "THE TRIAL COURT ERRED BY HEARING THIS MATTER WHEN
NEITHER PARTY RESIDED IN COSHOCTON COUNTY; BOTH PARTIES
CONTINUOUSLY RESIDED IN LICKING FOR A SUBSTANTIAL AMOUNT OF TIME
PRIOR TO MATTERS THAT WERE BEFORE THE TRIAL COURT."
III
{¶16} "THE TRIAL COURT ERRED BY RULING UPON APPELLANT'S
OBJECTIONS WITHOUT REVIEWING THE TRANSCRIPT, USING ALTERNATIVE
TECHNOLOGY TO REVIEW THE RECORD BEFORE THE MAGISTRATE, OR
PROVIDING APPELLANT WITH THE AUDIO RECORDINGS REQUESTED
PURSUANT TO A FEBRUARY 6, 2014 WRITTEN MOTION."
Coshocton County, Case No. 2014CA0008 5
IV
{¶17} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
OBJECTIONS TO THE MAGISTRATE'S DECISION THAT REFUSED TO ADOPT THE
APPELLANT'S PROPOSED SHARED PARENTING PLAN, A PLAN IN PLACE BY THE
PARTIES FOR MANY YEARS PREVIOUSLY BUT A PLAN THAT THE TRIAL COURT
REFUSED TO RECOGNIZE.
{¶18} "THE TRIAL COURT FURTHER ERRED BY ADOPTING THE
MAGISTRATE'S DECISION, WHICH NAMED APPELLEE AS THE RESIDENTIAL
PARENT OF THE PARTIES' MINOR CHILD, THE MAGISTRATE FOUND THAT THE
APPELLEE WAS THE SOURCE OF ANY ALLEGED NON-COOPERATION AND THAT
SUCH ALLEGED PROBLEMS WERE NOT JOINT IN NATURE. THE TRIAL COURT
ACCORDINGLY ERRED BY REWARDING APPELLEE'S BAD BEHAVIOR IN
UNILATERALLY REFUSING TO COOPERATE WITH APPELLANT IN AN ATTEMPT
TO GAIN A TACTICAL LITIGATION ADVANTAGE CONTRARY TO THE BEST
INTEREST OF THE CHILD AND CONTRARY TO THE MANIFEST WEIGHT OF THE
EVIDENCE."
V
{¶19} "THE TRIAL COURT ERRED BY ADOPTING THE MAGISTRATE'S
DECISION THAT ERRED BY NOT DEVIATING CHILD SUPPORT TO ZERO AND BY
IGNORING FACTORS CONTAINED IN THE DEVIATION STATUTE.
{¶20} "THE TRIAL COURT FURTHER ERRED IN ADOPTING THE
MAGISTRATE'S DECISION THAT ALLOCATED UNINSURED MEDICAL EXPENSES
Coshocton County, Case No. 2014CA0008 6
90% TO APPELLANT AND 10% TO APPELLEE WHEN APPELLEE'S HOUSEHOLD
INCOME GREATLY EXCEEDS THAT OF APPELLANT.
{¶21} "THE TRIAL COURT FURTHER ERRED IN ADOPTING THE
MAGISTRATE'S DECISION THAT FAILED TO MAKE THE CHILD SUPPORT
MODIFICATION RETROACTIVE TO THE DATE IT WAS FIRST REQUESTED IN
WRITING WITH THE TRIAL COURT."
I
{¶22} Appellant claims the trial court lacked subject matter jurisdiction to hear
the matter herein. We disagree.
{¶23} Appellant argues the trial court erred in exercising exclusive jurisdiction on
child support and custody matters when the divorce was granted by the General
Division.
{¶24} The pivotal issue is the timing of the jurisdiction invoked by the parties. It
is undisputed that the first filing was a complaint in the Juvenile Division by the CSEA to
establish child support on June 16, 2006. On July 3, 2006, appellee filed a complaint
for custody, also in the Juvenile Division. By a consent judgment filed August 8, 2006,
appellee was named the residential parent and legal custodian of the child and child
support was ordered.
{¶25} On September 29, 2006, appellee filed a complaint for divorce in the
General Division. The General Division issued a temporary support order on October 2,
2006.
{¶26} On June 4, 2007, appellee filed a motion in the Juvenile Division to
transfer jurisdiction of the Juvenile Division case to the General Division because of the
Coshocton County, Case No. 2014CA0008 7
pending divorce complaint. By judgment entry filed June 11, 2007, the trial court denied
the motion.
{¶27} On October 31, 2007, the General Division issued a final decree of divorce
which included a child support order and a shared parenting plan. No appeal was
taken.
{¶28} On July 13, 2009, the Juvenile Division modified the child support order
upon CSEA's motion. The judgment entry specifically states "neither party has filed
objections to that request." Appellant is listed as obligor and appellee is listed as
obligee. No appeal was taken on the issue of jurisdiction.
{¶29} On April 19, 2013, appellant filed a motion in the Juvenile Division to
modify child support.
{¶30} On June 13, 2013, appellant filed a motion in the General Division to
transfer jurisdiction of the Juvenile Division case to the General Division. By judgment
entry filed June 18, 2013, the trial court denied the motion.
{¶31} On June 17, 2013, appellant filed a motion in the Juvenile Division to
transfer jurisdiction of the Juvenile Division case to the General Division. By judgment
entry filed June 18, 2013, the trial court denied the motion.
{¶32} On June 24, 2013, appellant filed a shared parenting plan in the Juvenile
Division, contemporaneously with a motion to terminate the previous shared parenting
plan, and sought re-designation of residential parent.
{¶33} On July 10, 2013, the parties dismissed all pending motions in the General
Division, and the General Division relinquished jurisdiction to the Juvenile Division. No
appeal was taken on the relinquishment of jurisdiction.
Coshocton County, Case No. 2014CA0008 8
{¶34} R.C. 2153.23 governs jurisdiction of juvenile court. Subsection (A)(11)
states the following:
(A) The juvenile court has exclusive original jurisdiction under the
Revised Code as follows:
(11) Subject to divisions (G), (K), and (V) of section 2301.03 of the
Revised Code, to hear and determine a request for an order for the
support of any child if the request is not ancillary to an action for divorce,
dissolution of marriage, annulment, or legal separation, a criminal or civil
action involving an allegation of domestic violence, or an action for support
brought under Chapter 3115. of the Revised Code[.]
{¶35} In discussing the jurisdiction of the juvenile court relative to the Uniform
Interstate Family Support Act (hereinafter "UIFSA"), the Supreme Court of Ohio in Pula
v. Pula-Branch, 129 Ohio St.3d 196, 2011-Ohio-2896, ¶ 8, reaffirmed the meaning of
R.C. 2151.23(A)(11) as follows:
Indeed, cases brought pursuant to R.C. Chapter 3115 are explicitly
excluded from the juvenile court's exclusive jurisdiction. R.C.
2151.23(A)(11) grants exclusive jurisdiction to juvenile courts to "hear and
determine a request for an order for the support of any child if the request
is not ancillary to an action for divorce, dissolution of marriage, annulment,
or legal separation,***or an action for support brought under Chapter
Coshocton County, Case No. 2014CA0008 9
3115. of the Revised Code." (Emphasis added.) Thus, if the sought-after
support order arises in a domestic relations case or an R.C. Chapter 3115
case, the juvenile court does not have exclusive jurisdiction over support
orders. Since juvenile courts do not have exclusive jurisdiction under R.C.
Chapter 3115 claims, other courts may hear those cases.
{¶36} Under R.C. 2151.23(A)(2), a juvenile court has exclusive jurisdiction to
"determine the custody of any child not a ward of another court of this state." The
Juvenile Division was first to exercise jurisdiction on child support and custody and
continually exercised that jurisdiction unchallenged by the parties. The trial court's
assumption of jurisdiction under R.C. 2151.23(A)(2) was continuing.
{¶37} Upon review, we find the trial court had subject matter jurisdiction to hear
the matter.
{¶38} Assignment of Error I is denied.
II
{¶39} Appellant claims the matter should have been tried in Licking County as
both parties resided in said county. We disagree.
{¶40} An original custody complaint was filed in the Juvenile Division of the
Court of Common Pleas for Coshocton County on July 3, 2006. In his motion filed June
24, 2013 relative to a shared parenting plan and re-designation of residential parent,
appellant sought the jurisdiction of the Coshocton Juvenile Division and never
suggested to said court the residence of either party or the location of the child.
Appellee also never informed the court in her various motions. The record does not
Coshocton County, Case No. 2014CA0008 10
contain a formal transfer request to Licking County. Since a transcript has not been
provided, we are unable to determine if any objection or notice was given to the trial
court. In her objections to the magistrate's decision, appellee argued the lack of a
custody affidavit required under the UCCJA. In its judgment entry filed March 11, 2014,
the trial court denied the objection, stating the following:
The Court notes that such an affidavit was filed previously on July
3, 2006. The parties were aware of potential jurisdictional challenges
when the Father moved to transfer the matter to the General Division of
the Court, which was denied. The parties ligated (sic) the case, including,
presenting detailed information regarding where and with whom the child
had been living. Essentially, the statute's requirements were substantially
satisfied and no prejudice resulted.
{¶41} No appeal was taken from this determination.
{¶42} Assignment of Error II is denied.
III
{¶43} Appellant claims the trial court erred in ruling on the objections without
providing him with the audio recordings requested via motion filed February 6, 2014.
We disagree.
{¶44} Civ.R. 53(D)(3)(b)(iii) states the following:
Coshocton County, Case No. 2014CA0008 11
(iii) Objection to magistrate's factual finding; transcript or affidavit.
An objection to a factual finding, whether or not specifically designated as
a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a
transcript of all the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available. With
leave of court, alternative technology or manner of reviewing the relevant
evidence may be considered. The objecting party shall file the transcript
or affidavit with the court within thirty days after filing objections unless the
court extends the time in writing for preparation of the transcript or other
good cause. If a party files timely objections prior to the date on which a
transcript is prepared, the party may seek leave of court to supplement the
objections.
{¶45} We note the rule gives the trial court discretion to allow the use of
alternative means instead of a written transcript. In order to find an abuse of discretion,
we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217 (1983).
{¶46} In its judgment entry filed March 11, 2014, the trial court noted the
objections were reviewed, and found "no error of law or other defect on the face of the
Magistrate's Decision" regarding the objections, save for the objections on the parenting
time order which was appellant's Objection No. 4 and appellee's Objection No. 1.
Appellant's Objection Nos. 1, 2, 5, and 7 were issues of law that did not involve a
Coshocton County, Case No. 2014CA0008 12
disputed issue of fact necessitating a transcript. Objection Nos. 3 and 6 centered on the
denial of shared parenting and the designation of residential parent, and argued a
deviation to zero for child support based on parenting time.
{¶47} The trial court's ruling on March 11, 2014 was filed over thirty days from
appellant's objections and request for the audio recordings, both filed on February 6,
2014. Appellant's objections included a request "to supplement his Objections once a
transcript of the proceedings is filed with this Court." Appellant never filed a request for
an extension to have the transcript prepared.
{¶48} Based on the conflicting request, we find the trial court did not err or abuse
its discretion in ruling as it did.
{¶49} Assignment of Error III is denied.
IV, V
{¶50} Appellant claims the trial court erred in failing to adopt his shared
parenting plan, naming appellee as the residential parent, failing to deviate child support
to zero, allocating uninsured medical expenses, and failing to make the child support
modification retroactive to the date it was first requested. We disagree.
{¶51} Appellant failed to present this court with a transcript of the hearing. In
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980), the Supreme Court of
Ohio held the following:
The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden
of showing error by reference to matters in the record. See State v.
Coshocton County, Case No. 2014CA0008 13
Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized in App.R.
9(B), which provides, in part, that '***the appellant shall in writing order
from the reporter a complete transcript or a transcript of such parts of the
proceedings not already on file as he deems necessary for inclusion in the
record.***.' When portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, as to those assigned errors, the court has
no choice but to presume the validity of the lower court's proceedings, and
affirm. (Footnote omitted.)
{¶52} This rule of law pertains to all of the claimed errors except the retroactive
date of the child support modification. The start date to use for the modification of child
support is left to the discretion of the trial court. Wright v. Reck, 2nd Dist. Miami No.
2001-CA-30, 2001-Ohio-1706; Blakemore, supra.
{¶53} On April 19, 2013, appellant filed a motion to modify child support. On
June 24, 2013, appellant filed a shared parenting plan and requested a designation of
him as residential parent. On July 17, 2013, appellee filed a motion to increase child
support. Hearings were held before the magistrate on October 15, and December 10,
2013. In her decision filed January 31, 2014, the magistrate recommended a reduction
in appellant's child support obligation. The recommendation was not made retroactive.
{¶54} We note the parenting schedule and residential parent designation
remained the same from April 19, 2013 to January 31, 2014. Upon review, we find no
Coshocton County, Case No. 2014CA0008 14
abuse of discretion in ordering a decrease in child support forward from the date of the
decision.
{¶55} Assignments of Error IV and V are denied.
{¶56} The judgment of the Court of Common Pleas of Coshocton County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 902