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Michelle L. Rothwell v. Mark E. Rothwell

January 29, 2013

MICHELLE L. ROTHWELL, PLAINTIFF-APPELLEE,
v.
MARK E. ROTHWELL, ET AL., DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: McFarland, J.

Cite as

Rothwell v. Rothwell, 2013-Ohio-457.

DECISION AND JUDGMENT ENTRY

{¶1} Appellant, Mark E. Rothwell, appeals the judgment entry of the Pickaway County Court of Common Pleas, Division of Domestic Relations, issuing a decree of divorce as between Appellant, and Appellee, Michelle L. Rothwell. On appeal, Appellant essentially contends in his first and second assignments of error that the trial court erred in failing to record the four day final divorce hearing. Appellant further contends in his third assignment of error that the trial court's division of assets and liabilities of the parties was in contravention of the evidence presented at the final hearing. Because the trial court was not required to record the proceedings absent a request by one of the parties to do so, we cannot conclude that the trial court erred. As such, Appellant's first and second assignments of error are overruled. Further, in the absence of a transcript, because Appellant failed to provide an affidavit of the evidence pursuant to Civ.R. 53(D)(3)(b)(iii) in conjunction with his objections to the magistrate's decision, and also failed to file a statement of the evidence pursuant to App.R. 9(C) on appeal, we must presume the regularity of the proceedings below. Thus, Appellant's third assignment of error is also overruled. Accordingly, the decision of the trial court is affirmed.

FACTS

{¶2} The parties were married on November 14, 1998, and separated on November 14, 2009. Appellee, Michelle Rothwell, filed a complaint for divorce on December 30, 2009, naming as defendants her husband and Appellant herein, Mark Rothwell, as well as Grove City Garage Door, Inc., the company jointly owned by the parties. Appellant, Mark Rothwell, filed his answer and counterclaims to the complaint for divorce on February 11, 2010. Discovery between the parties ensued and the matter was scheduled for a final divorce hearing before the magistrate beginning on April 25, 2011.*fn1 After the presentation of evidence, the parties' respective counsel submitted written closing arguments.

{¶3} On October 28, 2011, a magistrate's decision, including findings of fact and conclusions of law, was filed which divided the parties' marital assets and debt. Appellant filed his objections to the magistrate's decision on November 14, 2011. Appellee in turn filed her response to Appellant's objections, as well as her own objections. A review of the record reveals that Appellant did not request or file a copy of the transcript in conjunction with the filing of his objections. Further, in the absence of the transcript, Appellant also failed to file an affidavit of the evidence pursuant to Civ.R. 53(D)(3)(b)(iii). On November 29, 2011, the trial court issued a decision and entry overruling Appellant's objections and affirming the magistrate's decision. In reaching its decision, the trial court stated as follows:

"It is noted that a transcript of the final hearing was not requested by the Defendant. Lacking a transcript, this Court will rely on the findings of fact outlined in the Magistrate's Decision and the evidence contained in the file."

Subsequently, on December 20, 2011, Appellant filed a motion for leave to have the transcript he had ordered that same day made available to the trial court for consideration. Appellee opposed the motion. The trial court implicitly denied Appellant's motion by virtue of its issuance of a judgment entry - decree of divorce on February 29, 2012.

{¶4} Appellant filed his notice of appeal on March 27, 2012, indicating in his statement, praecipe, and notice to the court reporter that he intended file a complete transcript of the proceedings. Subsequently, on April 11, 2012, the court reporter filed an affidavit stating that a record of the four days of the final divorce hearing was not available, due to a malfunction of the recording equipment. Further, a notice of transmission of the record was filed on May 8, 2012, indicating that it did not include a transcript of the proceedings. Appellate briefs were filed and the matter was heard on oral argument August 30, 2012. Then, on September 5, 2012, Appellant filed a motion requesting that he be permitted to file a statement of the evidence on appeal. By a magistrate's order dated September 12, 2012, this Court initially granted Appellant's motion; however, upon the objection of Appellee and after further consideration, we denied Appellant's motion, because the matter had already been submitted for decision. Thus, the appeal proceeded without a transcript, or an alternative App.R. 9(C) statement of the evidence.

ASSIGNMENTS OF ERROR I AND II

{¶5} Because Appellant's first and second assignments of error advance essentially the same argument, we will address them together. As stated above, taken together, Appellant's first and second assignments of error essentially contend that the trial court erred in failing to record the parties four day final divorce hearing. In support of this argument, Appellant cites us to the Supreme Court of Ohio Sup.R. 11(A)-(F), which he claims "requires" that a record of proceedings be made and maintained. Appellant further argues that because the trial court failed to record the proceedings, this Court should remand the matter for a new final hearing. Based upon the following reasons, we disagree.

{¶6} Sup.R. 11 governs "Recording of proceedings" and provides in section (A) that "[p]roceedings before any court and discovery proceedings may be recorded * * *." (Emphasis added). The applicable version of this rule was adopted in 1997 and is still currently in effect. Contrary to Appellant's argument, the 1997 Staff Notes which accompany the rule state that "[i]n civil matters, there is no obligation to record the proceedings before the court. However, the court must provide a means of recording the proceedings in a civil matter upon the request of a party." The Staff Notes further state that "R.C. 2301.20 requires the court of common pleas to provide a reporter on request of a party or their attorney."

{¶7} The Tenth District Court of Appeals recently addressed an argument similar to the one raised by Appellant in Franklin v. Franklin, 10th Dist. No. 11AP-713, 2012-Ohio-1814. In response, the Franklin court determined that Sup.R. 11 "clearly does not require every proceeding to be recorded." Franklin at ¶ 13; citing Levengood v. Levengood, 5th Dist. No. 1998AP100114, 2000 WL 874720, (June 7, 2000). As in Franklin, Appellant does not contend that a record was requested by one of the parties. Further, the version of R.C. 2301.20 that was in effect at the time of the hearing at issue provided that a trial court shall provide a shorthand reporter in civil cases upon the request of either party.*fn2 Thus, although the record reveals that the trial court did, in ...


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