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Ortega v. Ortega

Court of Appeals of Ohio, Fifth District, Fairfield

August 24, 2017

RAIMUNDO J. ORTEGA Plaintiff-Appellee
v.
IVETH P. ORTEGA Defendant-Appellant

         Appeal from the Court of Common Pleas, Domestic Relations Divison, Case No. 2011 DR 00326

          For Plaintiff-Appellee RAIMUNDO J. ORTEGA.

          For Defendant-Appellant DAVID W. POSTON.

          Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Defendant-Appellant, Iveth Ortega, appeals the January 27, 2015 decree of divorce of the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations Division. Plaintiff-Appellee is Raimundo Ortega.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On June 1, 1987, appellant and appellee were married. On June 24, 2011, appellee filed a complaint for divorce. The parties had four children, two of which were still minors at the time of the divorce filing, but are now emancipated.

         {¶ 3} Hearings before a magistrate were held on March 20, and May 1, and 9, 2013. The magistrate issued a decision on May 2, 2014. Appellant filed objections. By judgment entries filed September 18, and 24, 2014, the trial court denied the objections. A final decree of divorce was filed on January 27, 2015.

         {¶ 4} Appellant filed an appeal and this matter is now before this court for consideration.[1] Assignments of error are as follows:

         I

         {¶ 5} "THE TRIAL COURT ERRED WHEN IT CREDITED APPELLEE WITH RECEIPT OF $3, 500.00 ON THE BALANCE SHEET FOR THE 2011 FEDERAL TAX REFUND, WHEN APPELLANT ACTUALLY RECEIVED $6, 853.00 FROM THAT REFUND."

         II

         {¶ 6} "THE TRIAL COURT ERRED BY ORDERING APPELLANT TO PAY CHILD SUPPORT FOR TWO CHILDREN RETROACTIVE TO MARCH 20, 2013, WHEN ONE OF THE MINOR CHILDREN, DAVID, CONTINUED TO RESIDE SOLELY WITH APPELLANT."

         III

         {¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN IMPUTING APPELLANT WITH AN ANNUAL INCOME OF $16, 536.00 WHEN SHE HAD NOT BEEN EMPLOYED SINCE 1993."

         IV

         {¶ 8} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ORDERED APPELLANT TO PAY ONE HALF OF THE GUARDIAN AD LITEM FEES."

         I, II, III, IV

         {¶ 9} In her four assignments of error, appellant claims the trial court erred in making decisions on issues which were also raised in her objections to the magistrate's decision. In denying the objections, the trial court noted the following in its judgment entry filed September 18, 2014:

The Defendant objects to certain factual findings made by the Magistrate in the Magistrate's Decision. According to Ohio Civil Rule 53(D)(3)(b)(iii), "An objection to a factual finding, . . . 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. . . . 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. . . ." The Defendant has not filed a transcript.
Without a transcript, the Court is unable to determine whether the Magistrate properly determined the factual issues raised in Defendant's objections to the Magistrate's Decision. Pursuant to Ohio Civil Rule 53(D)(3)(b)(iii), it was the responsibility of the Defendant to obtain and file the transcript. Defendant's objections to the factual findings made by the Magistrate are therefore denied.
Therefore, Defendant's Objection to the Magistrate's Decision is found not well taken and is denied. The Magistrate's decision filed May 2, 2014 is ...

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