[Cite as In re Dissolution of Marriage of Early v. Early, 2016-Ohio-8413.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF THE ) CASE NO. 15 CO 0015
DISSOLUTION OF THE MARRIAGE )
OF: STEPHEN C. EARLY )
)
PETITIONER-APPELLEE, )
)
VS. ) OPINION
)
ALLISON R. EARLY nka GLASS )
)
PETITIONER-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Columbiana County, Ohio
Case No. 2008-DR-413
JUDGMENT: Affirmed.
APPEARANCES:
For Petitioner-Appellee: Atty. Brian Macala
117 South Lincoln Avenue
Salem, Ohio 44460
For Petitioner-Appellant: Atty. Benjamin Joltin
106 South Broad Street
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 19, 2016
[Cite as In re Dissolution of Marriage of Early v. Early, 2016-Ohio-8413.]
WAITE, J.
{¶1} Appellant, Allison R. Early (nka Glass) appeals the decision of the
Columbiana County Common Pleas Court denying her motion to terminate or modify
the shared parenting plan between her and Appellee, Stephen C. Early. Although
presenting two assignments of error, Appellant raises essentially a single issue:
whether the trial court abused its discretion in denying Appellant’s motion to
terminate or, in the alternative, modify the shared parenting plan regarding the
designation of residential parent for school purposes.
{¶2} For the reasons expressed below, the issue raised by Appellant is
meritless. The judgment of the trial court is affirmed.
Statement of the Case
{¶3} The parties were married on July 5, 1997 and have three children. The
marriage was terminated by decree of dissolution filed on November 13, 2008. In the
judgment entry the court approved a shared parenting plan that designated Appellant
as residential parent of the children for school purposes.
{¶4} The parties have been engaged in prolonged litigation over the course
of several years, and this matter has a torturous procedural history. On June 20,
2011, Appellant filed a motion for reallocation of parental rights and responsibilities,
seeking modification of the shared parenting plan. The parties were referred to
mediation. In December of 2011 the trial court was advised that the issues had been
resolved in mediation. However, prior to having an agreement memorialized in
writing and adopted by the trial court, Appellant filed a motion seeking to terminate or,
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in the alternative, modify the shared parenting agreement and have a guardian ad
litem appointed.
{¶5} While the matter was pending, Appellant filed a notice of intent to
relocate and requested that the trial court conduct an in camera interview of the
minor children. On September 11, 2012, Appellee filed a motion to modify the shared
parenting plan due to Appellant’s expressed intention to relocate outside of Ohio with
the minor children. Appellant filed a motion to show cause on November 20, 2012. A
trial was held by the magistrate on January 31, 2013 and May 14, 2013. Appellant
withdrew her notice of intent to relocate during that time period. On July 2, 2013, a
magistrate’s decision was issued overruling Appellant’s motion to show cause and
denying the motion to terminate the shared parenting agreement. The magistrate did
modify the shared parenting agreement regarding the parenting time schedule and
child support.
{¶6} Appellant filed objections to the magistrate’s decision on July 11, 2013.
Appellant also filed a second notice of intent to relocate on August 30, 2013. The
trial court set Appellant’s objections to the magistrate’s decision for a non-oral
hearing. Appellant failed to request a transcript of the trial held before the magistrate.
Appellant’s objections were overruled in a judgment entry dated October 29, 2013.
Appellant filed an appeal on November 26, 2013. On December 10, 2013, we
remanded the matter to the trial court for the limited purpose of clarifying the trial
court’s ruling on the objections.
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{¶7} Meanwhile, in response to Appellant filing a renewed, third notice of
intent to relocate, Appellee filed his own motion for modification of the shared
parenting plan on October 8, 2013. Appellant responded by filing yet another motion
to modify the shared parenting plan on November 6, 2013. On February 24, 2014,
as those motions were pending before the trial court, we granted Appellant thirty days
leave to file her brief and assignments of error along with a transcript of the
proceedings. Appellant requested that we dismiss her appeal and we entered a
dismissal entry on April 14, 2014.
{¶8} The trial court set all pending motions for trial. After commencement of
trial, Appellant once again filed a motion seeking termination of the shared parenting
plan on July 28, 2014. Appellee filed to strike this motion on the basis that trial had
commenced on the earlier motions filed by both parties. On the second day of trial,
September 11, 2014, Appellant’s motion was overruled by the trial court.
{¶9} While the matter was pending in the trial court, Appellant filed a motion
to suspend Appellee’s parenting time. Subsequently, Appellee filed a motion seeking
to hold Appellant in contempt for her failure to allow parenting time. On December
30, 2014, a magistrate’s decision was issued denying all motions pending before the
court as of October 8, 2014. These included the competing motions to
modify/terminate shared parenting and Appellant’s requests to relocate with the
children. Appellant filed objections to the magistrate’s decision on January 12, 2015.
Again, Appellant failed to file the magistrate’s hearing transcript along with her
objections. As the motion to suspend parenting time and the motion in contempt
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were filed post hearing, the trial court reappointed the guardian ad litem and
appointed counsel for the children in response to Appellant’s assertion that the
guardian ad litem’s recommendations were in conflict with the wishes of the children.
{¶10} In a judgment entry dated March 16, 2015, the trial overruled
Appellant’s objections to the magistrate’s decision and adopted that decision.
Appellant filed her notice of appeal on April 15, 2015. On October 7, 2015, Appellee
filed a motion to dismiss for lack of prosecution. On November 6, 2015, we
dismissed the appeal. On November 24, 2015, Appellant filed her brief along with a
motion for reconsideration and to reinstate the appeal. We reinstated the appeal on
December 24, 2015. Appellee filed a motion for reconsideration of our decision to
reinstate the appeal which was denied.
{¶11} On January 27, 2016, Appellee filed a motion for a limited remand to
the trial court to adjudicate the motions to suspend parenting time and show cause
that were still pending in the trial court. On March 2, 2016, we entered a limited
remand only to allow hearings on these pending motions. As there was no stay of
execution filed by either party and the proceedings in the trial court would not be
affected by the instant appeal, Appellee was instructed that this appeal would
proceed. He then filed his brief in this matter, also substantially out of rule.
{¶12} Appellant asserts two assignments of error:
ASSIGNMENTS OF ERROR
WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN DENYING APPELLANT'S MOTION TO TERMINATE
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THE SHARED PARENTING PLAN AND IN THE LATERNATIVE [SIC]
DENY APPELLANT'S REQUEST TO MODIFY THE SHARED
PARENTING PLAN REGARDING THE DESIGNATION OF
RESIDENTIAL PARENT FOR SCHOOL PURPOSES.
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DENYING THE PARTIES' MOTIONS TO TERMINATE THE SHARED
PARENTING PLAN.
{¶13} In both assignments of error, Appellant argues the trial court erred in
denying her motions to terminate or modify the shared parenting agreement.
Appellant does not raise the issue of the denial of her motion to relocate out of state.
Hence, this argument has been waived.
{¶14} At the outset, we must note that Appellant’s brief contains a statement
of the case which outlines the lengthy and unusual procedural posture of the case.
However, her statement of the facts recites only, “Appellant restates and
reincorporates its Statement of Case as if fully rewritten.” (Appellant’s Brf., p. 8.)
Within the law and argument portion of her brief Appellant makes multiple references
to factual issues and evidentiary testimony.
{¶15} As noted both at the trial court and by this Court, Appellant has
completely failed to submit any transcripts of hearing in this matter. She has also
failed to file any statement of the evidence in this Court as required by App.R. 9.
Pursuant to App.R. 9(B)(1), it is Appellant’s obligation to ensure the proceedings she
considers necessary for inclusion in the record are transcribed. “When portions of
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the transcript necessary for resolution of assigned errors are omitted from the record,
the reviewing court has nothing to pass upon and thus, to those assigned errors, the
court has no choice but to presume the validity of the lower court’s proceedings, and
affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384
(1980). When arguing any factual matter, a transcript is necessary on appeal as
Appellant bears the burden of demonstrating error by reference to matters contained
within the record. State v. Skaggs, 53 Ohio St.2d 162, 163, 372 N.E.2d 1355 (1978).
{¶16} In the absence of any transcript of the proceedings, we are limited to
the record before us. The factual findings of the trial court are deemed established
and we must presume the validity of the proceedings below.
{¶17} R.C. 3109.04 governs a trial court’s discretion in child custody
modification proceedings. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E. 2d 846
(1988). A trial court determination regarding child custody matters that is supported
by competent and credible evidence will not be reversed absent an abuse of
discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus.
{¶18} R.C. 3109.04(E)(1)(a) provides:
The Court shall not modify a prior decree allocating parental rights and
responsibilities for the care of the children unless it finds, based on
facts that have arisen since the prior decree or that were unknown to
the court at the time of the prior decree, that a change has occurred in
the circumstances of the child, the child’s residential parent, or either of
the parents subject to a shared parenting decree, and that the
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modification is necessary to serve the best interest of the child. In
applying these standards, the court shall retain the residential parent
designated by the prior decree or the prior shared parenting decree,
unless a modification is in the best interest of the child and one of the
following applies:
(i) The residential parent agrees to a change in the residential parent or
both parents under a shared parenting decree agree to a change in the
designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.
{¶19} Appellant contends “[t]he evidence clearly showed the parties’ inability
to co-parent; the minor children wished that said plan be terminated and that they be
permitted to [attend] the Hubbard School System and the guardian-ad-litem
recommended the termination of said shared parenting plan and most importantly
believed that the termination of said plan and permitting the children to [attend]
Hubbard schools was in their best interest.” (Appellant’s Brf., p. 11.) Again, we are
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limited in our review to only those findings of fact made by the trial court on this
record.
{¶20} The trial court noted in its March 16, 2015 judgment entry that the
magistrate made 43 findings of fact relative to each of the factors set forth in R.C.
3109.04. Based on this, the court stated:
The Magistrate’s extensive findings of fact are more than sufficient to
support the conclusion that shared parenting continues to be in the best
interests of the minor children. [Appellee] has had some difficulties with
the oldest child * * *, but they are getting along better with the addition
of some counseling. [Appellee] points to the protracted legal battle with
[Appellant] as a factor negatively impacting the relationship between the
parents and their children. It is evident that the Magistrate agrees,
finding that the minor children are the only casualties in the parents’
ongoing legal battle.
(3/16/15 J.E., p. 3.)
{¶21} The trial court determined:
Overbalancing those facts, however, are the findings of fact relative to
the continuation of shared parenting and the best interests of the minor
children. On this issue the Magistrate’s findings include that the only
changed circumstance in the life of the children or the parents is that
[Appellant] has relocated to Hubbard. Neither party presented the
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Magistrate with a compelling reason to terminate the shared parenting
plan and the Magistrate found no such reason.
Id. at pp. 3-4.
{¶22} After reviewing the magistrate’s factual determinations and without the
ability to review the transcript of the hearing on this matter, the court stated that,
“[b]ased on the foregoing and its independent review pursuant to Civ. R. 53(D)(4)(d)
this Court concludes the Magistrate’s ample findings of fact reasonably and logically
support her conclusions of law.” Id. at p. 6.
{¶23} It is abundantly apparent that Appellant was making a factual argument
to the trial court. Her utter failure to provide the court with any evidence to support
her argument by means of a transcript of hearing left the trial court with no alternative
but to uphold the factual findings of the magistrate. Likewise, on appeal, because
Appellant did not file the transcripts necessary to review factual findings to the trial
court, we are unable to review her factual arguments. RBS Citizens, NA v. Sharp,
7th Dist. No. 13 MA 11, 2015-Ohio-5438, 47 N.E.3d 170, ¶ 27 (failure to provide trial
court with the transcripts of the proceedings before the magistrate limits both the trial
court and this Court to reviewing only questions of law); Lipari v. Tanoff, 7th Dist. No.
13 MA 17, 2014-Ohio-1176, ¶1 3-14 (“the failure to file a transcript with objections to
a magistrate's decision waives all factual challenges on appeal”), citing State ex rel.
Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254
(1995) (where the objecting party fails to provide the trial court with the transcript of
the proceedings before the magistrate, an appellate court is precluded from
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considering the transcript of the magistrate's hearing if it is submitted with the
appellate record).
{¶24} Accordingly, based upon our review of the limited record before us, we
find no error on the part of the trial court. Appellant’s assignments of error are
without merit and the judgment of the trial court is hereby affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.