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Hurst v. Hurst

Court of Appeals of Ohio, Fifth District

June 24, 2013

WENDY M. HURST (RAMSEY), Plaintiff-Appellee
v.
MARK E. HURST, Defendant-Appellant

Civil appeal from the Licking County Court of Common Pleas, Domestic Relations Division, Case No. 07-DR-00993 RPW

For Plaintiff-Appellee: MARK E. HURST

For Defendant-Appellant: WENDY M. HURST (RAMSEY)

JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Sheila G. Farmer, J.

OPINION

Gwin, P.J.

{¶1} Appellant Mark E. Hurst appeals the decision of the Licking County Court of Common Pleas, Domestic Relations Division that denied his motion to modify child visitation regarding his two minor children and denied his motion for contempt.[1] Appellee Wendy M. Ramsey [fna "Hurst"] ["Mother"] is appellant's former spouse and the mother of these two children.[2]

Facts and Procedural History

{¶2} On August 11, 2009, Mother and Appellant were granted a divorce. The parties have two children born of the marriage, D.H. (06/27/2001) and W.H. (05/21/2003). Mother was named the sole custodian and residential parent of the parties' children. The divorce decree further provided,

3. PARENTING TIMES, VACATIONS, AND HOLIDAYS. The Defendant [Appellant] shall have no parenting time with the minor children until further order of this Court. Further, there shall be no phone contact with the minor children pending further order of this Court.

{¶3} Appellant did not appeal the decision. On August 6, 2008, Appellant was found guilty of pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(5); pandering sexually-oriented matter involving a minor, in violation of R.C. 2907.322(A)(5); and illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(3). The offenses were alleged to have taken place in March and April 2007. See, State v. Hurst, 5th Dist. No. 2008-CA-0104, 2009-Ohio-983. Appellant served his full term, and was released under the supervision of the Adult Parole Authority in November of 2011. See, State v. Hurst, 5th Dist. No. 12-CA-20, 2012-Ohio-6074, ¶4 (vacating Appellants classification as a sexually oriented offender pursuant to State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374 because none of the offenses for which Appellant was convicted were considered a sexually oriented offense under the previous version of R.C. 2950.01(D)).

{¶4} On September 13, 2011, Mother filed her notice of intent to relocate with the children. Pursuant to the issuance of a Civil Protection Order, Mother's address was not released to Appellant and has been sealed. (T. at 52).

{¶5} On January 19, 2012, Appellant filed a pro se motion, which the trial court characterized as a motion to modify parenting times, and a motion for contempt against Mother. The trial court advised Appellant to re-file the contempt motion because he had not followed the required procedures for the filing of a motion for contempt. On January 23, 2012, Appellant filed a verified motion for contempt. Both motions were set for an evidentiary hearing before a magistrate on April 12, 2012.

{6} Appellant and Mother appeared pro se at the hearing. Each testified and was cross-examined by the other. Relevant to this appeal, Mother additionally called two witnesses.

{7} On May 10, 2012, the magistrate filed her findings of fact and conclusions of law denying Appellant's motions. On May 14, 2012, Appellant filed his objections to the magistrate's decision. The trial court overruled Appellant's objections noting that Appellant failed to request a transcript of the April 12, 2012 hearing before the magistrate by judgment entry filed July 17, 2012.

{¶8} On July 18, 2012, Appellant filed a motion to reconsider his objections together with an affidavit of indigency. The trial court denied Appellant's motion by Judgment Entry filed August 6, 2012, noting that Appellant never requested a transcript or an extension of time to obtain one.

{¶9} The trial court affirmed the magistrate's decision and denied each of Appellant's motions by Judgment Entry filed August 6, 2012.

Assignments of Error

{10} Appellant raises seven pro se assignments of error,

{¶11} "I. HEARSAY EVIDENCE AND TESTIMONY.

{¶12} "II. ABUSE OF DISCRETION.

{¶13} "III. SUFFICIENT AND COMPELLING EVIDENCE.

{¶14} "IV. DEPRIVATION OF LIBERTY AND PROPERTY.

{¶15} "V. BIAS AND PREJUDICE.

{¶16} "VI. DOUBLE JEOPARDY.

{¶17} "VII. THE MAGISTRATE VIOLATED THE APPELLANTS CONSTITUTIONAL, 14tth AMMENDMENT [sic] RIGHT TO EQUAL PROTECTION AND TREATMENT."

Pro se Appellants

{¶18} We understand that Appellant has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst, 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

{¶19} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in Appellant's brief that are outside of the record.

{¶20} In the interests of justice, we shall attempt to consider Appellant's assignments of error.

Failure to File transcript with the Trial Court

{¶21} We first must address Appellant's failure to present a transcript to the trial court for its review of Appellant's objections to the magistrate's decision. Appellant filed the transcript of the full hearing in this court with his appeal. The trial court never had the opportunity to review the transcript when considering Appellant's objections to the magistrate's decision.

{¶22} Civ. R. 53(D)(3)(b)(iii) provides:

(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.

{¶23} Where an appellant fails to provide a transcript of the original hearing before the magistrate for the trial court's review, the magistrate's findings of fact are considered established and may not be attacked on appeal. Stark v. Haser, 5th Dist. No. 03CAF11057, 2004-Ohio-4641, ¶15; Lamp v. Linton, 5th Dist. No. 2011-CA-06, 2011-Ohio-6111; State v. Leite, 5th Dist. No.1999AP090054, 2000 WL 502819(April 11, 2000); Fogress v. McKee 5th Dist. No. 99CA15, 1999 WL 668580(Aug. 11, 1999. If an objecting party fails to provide the trial court with the transcript of the proceedings before the magistrate, the appellate court is precluded from considering the transcript of the magistrate's hearing. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254, 1995-Ohio-272.

{¶24} Appellant could have, but did not seek to file an affidavit of the evidence under Civ.R. 53(D)(3)(b)(iii). See e.g., State ex rel. Motley v. Capers, 23 Ohio St.3d 56, 491 N.E.2d 311(1986). (Holding that a transcript is "unavailable" for purposes of App.R. 9(C) which allows the use of narrative statements when indigent appellant is unable to bear cost of providing transcript); Lamp v. Linton, supra.

{¶25} In Robinson v. Custom Sports Cycle, this Court noted,

While significant case law exists which would allow for a free transcript for an indigent criminal defendant, (see, e.g., State v. Arrington (1975), 42 Ohio St.2d 114, 326 N.E.2d 667; Mayer v. City of Chicago (1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372), or a party involved in certain parental rights proceedings (see, e.g., State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66), we would concur with the wording of the Tenth District Court of Appeals: "While in criminal appeals a single copy of the transcript must be prepared at government expense and filed with the court for those who are demonstrated to be indigent, no similar responsibility must be borne by the government in the appeal of civil cases." Duff v. Ohio Dept. of Rehabilitation and Correction (June 30, 1992), Franklin App. No. 92AP-146, unreported, at 1

{¶26} In addition, we have no reason to question the magistrate's credibility determination. The magistrate, having observed the live testimony, was in a superior position when compared to this court to judge the credibility of Mother and Appellant. State v. Gordon, 10th Dist. No. 10AP-1174, 2011-Ohio-4208, ¶14 (triers of fact were in a much better position to adjudge the credibility of the witnesses given their ability to view the witnesses' live testimony). Our inability to even review the transcript testimony makes it nearly impossible for us to overturn the magistrate's credibility determination. See, e.g., Elyria v. Rowe, 121 Ohio App.3d 342, 344, 700 N.E.2d 36(9th Dist. 1997) (because of appellant's failure to provide a transcript of the proceedings below, the appellate court could not review the credibility of the witnesses who testified and presumed the trial court's findings were correct); Murray v. Murray, 5th Dist. No. 01-CA00084, 2002-Ohio-2505 (with no transcript of the evidentiary hearing having been filed, we must assume that the trial court properly considered the evidence and credibility of the witnesses).

{¶27} Further, Appellant's failure to provide the trial court with a transcript of the magistrate trial precludes him from challenging the decision or judgment as being against the manifest weight of the evidence. GMS Mgt. Co., Inc. v. Coultier, 11th Dist. No.2005-L-071, 2006-Ohio-1263, ¶ 26.

{¶28} Because Appellant did not file a transcript of the proceedings before the magistrate with his objections, the factual findings of the magistrate are deemed established and may not be attacked on appeal. Accordingly, we review Appellant's assignments of error only to analyze whether the trial court abused its discretion in reaching specific legal conclusions based upon the established facts. We find no abuse of discretion in the trial court's approval and adoption of the magistrate's decision not to grant Appellant parenting time with the two minor children and not finding Mother in contempt.

I.

{¶29} After reviewing Appellant's brief including his contentions, we have interpreted Appellant's first assignment of error in the following manner: the trial court erred in allowing Mother to testify that the children ...


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