[Cite as French v. French, 2016-Ohio-5759.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JESSICA M. FRENCH : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 16-CA-4
:
JOEL A. FRENCH :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Domestic Relations
Division Case No. 08DC12-0242
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 2, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MARY L. RANNEY JOEL A. FRENCH, pro se
1 South Main St. 2623 Apple Valley Dr.
P.O. Box 484 Howard, OH 43028
Utica, OH 43080
Knox County, Case No. 16-CA-4 2
Delaney, J.
{¶1} Appellant Joel A. French appeals from the February 1, 2016 Judgment
Entry of the Knox County Court of Common Pleas, Domestic Relations Division. Appellee
is Jessica M. French.
FACTS AND PROCEDURAL HISTORY
{¶2} The instant case, arising from the parties’ divorce, has a lengthy procedural
history. The following recounts only the procedural history immediately relevant to the
instant appeal.
{¶3} Appellant and appellee were divorced by a Judgment Decree of Divorce
filed April 6, 2010. The parties have two minor children together.
{¶4} On October 19, 2015, a hearing was held which addressed multiple motions
filed by the parties, including contempt allegations and modification of parental rights and
responsibilities. A Magistrate’s Proposed Decision was filed December 4, 2015.
Appellant objected.
{¶5} On February 1, 2016, the trial court filed a Judgment Entry overruling
appellant’s objections, sustaining appellee’s objections, and, e.g., ordering appellant’s
parenting time to be supervised until he obtains a mental health evaluation and follows
all recommendations. The Judgment Entry notes no transcript was filed with the
objections.
{¶6} Appellant now appeals from the trial court’s Judgment Entry of February 1,
2016. The appellate record does not contain a transcript of the hearing on October 19,
2015.
{¶7} Appellant raises two assignments of error:
Knox County, Case No. 16-CA-4 3
ASSIGNMENTS OF ERROR
{¶8} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT VIOLATED
DEFENDANT’S CIVIL RIGHTS BY DENYING AN IMPARTIAL AND UNBIASED TRIAL,
BY DENYING HAVING THE HEARING WITHIN A REASONABLE AMOUNT OF TIME,
BY PROVIDING DEFENDANT A REAL OPPORTUNITY TO PRESENT HIS CASE AND
CHALLENGE THE CASE AGAINST HIM.”
{¶9} “II. THE TRIAL COURT VIOLATED EIGHT RULES OF OHIO CODE OF
JUDICIAL CONDUCT AS DEFINED ABOVE (sic).”
ANALYSIS
{¶10} In his first assignment of error, appellant challenges actions of the trial court
arising from the October 19, 2015 hearing. Appellant has not provided a record of the
proceedings below and we must therefore overrule the first assignment of error.
{¶11} First, we note appellant’s brief does not comply with App. R.16. Appellant
has not made any reference to the record in framing his legal arguments here. We are
not obliged to search the record for some evidence of claimed error. Four Winners, Inc.
v. Columbus Dev. Regulation Div. Admr., 83 Ohio App.3d 118, 124, 614 N.E.2d 775 (10th
Dist.1992).
{¶12} Nor has appellant complied with App.R. 9. In reviewing assigned error on
appeal we are confined to the record that was before the trial court as defined in App.R.
9(A). This rule provides that the record on appeal consists of “[t]he original papers and
exhibits thereto filed in the trial court, the transcript of proceedings, if any, including
exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the
trial court.”
Knox County, Case No. 16-CA-4 4
{¶13} App.R. 9(B) also provides in part “ * * *[w]hen 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.” In Knapp
v. Edwards Laboratories the Ohio Supreme Court stated: “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.” 61 Ohio St.2d
197, 199, 400 N.E.2d 384 (1980).
{¶14} Appellant has not provided a transcript of the October 19, 2015 hearing.
Without a transcript, we must presume the regularity of the trial court’s proceeding on the
motion. State v. Ellis, 5th Dist. No. 11-COA-015, 2011-Ohio-5646, *2.
{¶15} We note that even if appellant had filed a transcript, we could not consider
it because the transcript was not submitted to the trial court. It is axiomatic that we as an
appellate court may not add matter to record that was not before trial court and the record
cannot be enlarged by factual assertions in a party’s brief. State v. Hale, 5th Dist. Perry
No. 14-CA-00014, 2014-Ohio-5028, ¶18.
{¶16} The instant appeal arose from a magistrate’s hearing, and we note the trial
court stated the record of that hearing was not provided to the trial court in ruling upon
the objections. If an appellant fails to provide the transcript of the original hearing before
the magistrate for the trial court's review, the magistrate's findings of fact are considered
established. In re W.O., 5th Dist. Guernsey No. 13 CA 18, 2013-Ohio-5003, ¶ 9. We
would thus be precluded from considering transcript of the hearing submitted with the
appellate record. See State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d
Knox County, Case No. 16-CA-4 5
728, 730, 654 N.E.2d 1254 (1995). “[T]he reviewing court is only permitted to determine
if the application of the law was proper or if it constituted an abuse of discretion.” Eiselstein
v. Baluck, 7th Dist. Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18.
{¶17} Appellant’s first assignment of error is overruled.
II.
{¶18} In his second assignment of error, appellant argues the trial court violated
rules of the Ohio “code of judicial ethics.” We overrule this assignment of error because
insofar as appellant's argument depends upon a violation of the Code of Judicial Conduct,
the instant appeal is not the proper venue for such a complaint. Allegations of judicial
misconduct under the Code of Judicial Conduct are not cognizable on appeal but are
matters properly within the jurisdiction of the disciplinary counsel. See Parker v. Elsass,
10th Dist. Franklin No. 01AP–1306, 2002–Ohio–3340, at ¶ 25, citing Szerlip v. Szerlip,
5th Dist. Knox No. 01CA09, 2002–Ohio–2541, at ¶ 18.
{¶19} Appellant’s second assignment of error is overruled.
CONCLUSION
{¶20} Appellant’s two assignments of error are overruled and the judgment of the
Knox County Court of Common Pleas is affirmed.
By: Delaney, J. and
Farmer, P.J.
Hoffman, J., concur.