[Cite as Argenziano v. Argenziano, 2012-Ohio-1447.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
BRANDY A. ARGENZIANO C.A. No. 10CA0116-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE FRANK A. ARGENZIANO COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 08CR0359
DECISION AND JOURNAL ENTRY
Dated: April 2, 2012
CARR, Judge.
{¶1} Appellant, Frank Argenziano (“Husband”), appeals the judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, which overruled his objections
and adopted the magistrate’s decision. This Court affirms.
I.
{¶2} Appellee, Brandy Argenziano (“Wife”), filed a complaint for divorce from
Husband. The couple had two minor children born of the marriage. The matter was heard by a
magistrate who issued a decision on September 24, 2010, regarding the termination of the
parties’ marriage with children. On the same day, the domestic relations court issued a final
decree of divorce with children. On October 8, 2010, Husband filed timely objections to the
magistrate’s decision in which he objected to 26 specific findings of fact and another six specific
“Conclusions of Law/Findings of Fact.” Husband requested an oral hearing on his objections
and requested that he be permitted to supplement his objections after preparation of a transcript 2
of the hearing before the magistrate. Husband did not file a praecipe with the court reporter for
preparation of the transcript contemporaneously with the filing of his objections.
{¶3} On October 20, 2010, the trial court issued a judgment entry overruling
Husband’s objections and adopting the magistrate’s findings of facts because Husband had failed
to file a transcript in support of his objections. The trial court further noted that Husband had not
filed a praecipe to the court reporter requesting preparation of a transcript of the proceedings or
deposited a payment of costs with the court reporter to secure a transcript. Husband appealed,
raising one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND VIOLATED DEFENDANT- APPELLANT’S DUE PROCESS RIGHTS BY (1) HOLDING A NON-ORAL HEARING ON HIS TIMELY-FILED WRITTEN OBJECTIONS TO THE MAGISTRATE’S DECISION WITHIN DAYS OF ITS FILING, WITHOUT PROVIDING NOTICE OF THAT HEARING, AND (2) DISMISSING THOSE WRITTEN OBJECTIONS WELL BEFORE EXPIRATION OF THE 30-DAY DEADLINE UNDER CIV.R. 53(D)(3) FOR FILING THE HEARING TRANSCRIPTS, ON THE GROUNDS THAT DEFENDANT-APPELLANT DID NOT FILE A PRAECIPE TO THE COURT REPORTER AND PAY A DEPOSIT OF COSTS TO THE COURT REPORTER TO SECURE THE REQUIRED TRANSCRIPTS, WHERE THERE IS NO LOCAL RULE OR OTHER LEGAL REQUIREMENT THAT SUCH A PRAECIPE BE FILED AND COSTS OF THE TRANSCRIPTS BE PAID IN ADVANCE.”
{¶4} Husband argues that the trial court erred by adopting the magistrate’s findings of
fact and overruling his objections to the magistrate’s decision after a non-oral hearing based on
his failure to file a praecipe or pay costs to the court reporter to secure the preparation of a
transcript in support of his objections. This Court disagrees.
{¶5} Husband acknowledges that, pursuant to Civ.R. 53(D)(3)(b)(iii), he was required
to support his objections, all of which were premised on the magistrate’s factual findings, by a 3
transcript of the evidence submitted to the magistrate. He does not dispute that he failed to file,
contemporaneously with his objections, a praecipe with the court reporter requesting preparation
of a transcript of the proceedings. Instead, he further relies on Civ.R. 53(D)(3)(b)(iii) which
provides that the objecting party must file a transcript within thirty days after filing his
objections. Husband argues that the domestic relations court erred by ruling on his objections a
mere twelve days after he filed his objections, prior to the expiration of the thirty-day window in
which he could file a transcript. Significantly, he argues that “no duly adopted and published
Local Rule of Court” exists which requires the contemporaneous filing of a praecipe and
payment of a deposit, the noncompliance with which would authorize the trial court’s denial or
dismissal of his objections. Husband is incorrect.
{¶6} Loc. R. 1.07, in effect at the time Husband filed his objections, addresses the
preparation of transcripts of proceedings before a magistrate and states, in relevant part:
A. If a transcript is required, a praecipe to the Court Reporter requesting a transcript of the proceedings must be delivered to and acknowledged by the Court Reporter at the time of the filing of the Objection or Motion to Set Aside. Failure to timely file the praecipe may result in the denial or dismissal of an Objection or Motion to Set Aside.
B. A deposit of costs to secure the transcript must be paid to the Court Reporter within 7 days of the filing of the Objection or Motion to Set Aside. If the deposit for the costs of a transcript is not made within 14 days of the filing of the Objection or Motion to Set Aside, the Objection or Motion may be denied or dismissed.
{¶7} By failing to recognize the existence of the local rule which formed the
basis for the trial court’s denial of Husband’s objections, Husband has failed to make any
argument regarding the propriety or application of the rule. This Court has long
recognized that “[a]n appellant bears the burden of affirmatively demonstrating the error 4
on appeal, and substantiating his or her arguments in support.” Akron v. Meyer, 9th Dist.
No. 21882, 2004-Ohio-4457, ¶ 14, citing App.R. 16(A)(7).
{¶8} Husband further argues that the domestic relations court’s ruling on his objections
after a non-oral hearing violated his right to due process. He argues that the trial court violated
the requirements of notice and the opportunity to be heard at an oral hearing subsumed in Civ.R.
6(D). This Court disagrees.
{¶9} Civ.R. 6(D) addresses motions and provides, in relevant part, that “[a] written
motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be
served not later than seven days before the time fixed for the hearing * * *.” Husband did not
have a written motion pending before the domestic relations court. Rather, he had filed a notice
of objections to the magistrate’s decision. Civ.R. 6(D) does not address objections and does not
impute a notice and hearing requirement in regard to objections. Moreover, Husband cites no
legal authority in support of his argument that a trial court may not rule on objections to a
magistrate’s decision in the absence of an oral hearing on the matter.
{¶10} In further support of his argument, Husband cites Shell v. Shell, 5th Dist. No.
2010 CA 00026, 2010-Ohio-5813, at ¶ 24, in which the appellate court held that the domestic
relations court committed reversible error when it dismissed the wife’s contempt motion as
unripe without allowing a hearing. The Shell court did not rely on Civ.R. 6(D) and Husband
does not explain how the holding in Shell is applicable to the instant matter. Shell cites generally
to Matthews v. Eldridge, 424 U.S. 319 (1976), a case which held that due process does not
require an evidentiary hearing prior to the termination of social security disability benefits.
While recognizing that due process requires that an individual receive some form of hearing
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Argenziano v. Argenziano, 2012-Ohio-1447.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
BRANDY A. ARGENZIANO C.A. No. 10CA0116-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE FRANK A. ARGENZIANO COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 08CR0359
DECISION AND JOURNAL ENTRY
Dated: April 2, 2012
CARR, Judge.
{¶1} Appellant, Frank Argenziano (“Husband”), appeals the judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, which overruled his objections
and adopted the magistrate’s decision. This Court affirms.
I.
{¶2} Appellee, Brandy Argenziano (“Wife”), filed a complaint for divorce from
Husband. The couple had two minor children born of the marriage. The matter was heard by a
magistrate who issued a decision on September 24, 2010, regarding the termination of the
parties’ marriage with children. On the same day, the domestic relations court issued a final
decree of divorce with children. On October 8, 2010, Husband filed timely objections to the
magistrate’s decision in which he objected to 26 specific findings of fact and another six specific
“Conclusions of Law/Findings of Fact.” Husband requested an oral hearing on his objections
and requested that he be permitted to supplement his objections after preparation of a transcript 2
of the hearing before the magistrate. Husband did not file a praecipe with the court reporter for
preparation of the transcript contemporaneously with the filing of his objections.
{¶3} On October 20, 2010, the trial court issued a judgment entry overruling
Husband’s objections and adopting the magistrate’s findings of facts because Husband had failed
to file a transcript in support of his objections. The trial court further noted that Husband had not
filed a praecipe to the court reporter requesting preparation of a transcript of the proceedings or
deposited a payment of costs with the court reporter to secure a transcript. Husband appealed,
raising one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND VIOLATED DEFENDANT- APPELLANT’S DUE PROCESS RIGHTS BY (1) HOLDING A NON-ORAL HEARING ON HIS TIMELY-FILED WRITTEN OBJECTIONS TO THE MAGISTRATE’S DECISION WITHIN DAYS OF ITS FILING, WITHOUT PROVIDING NOTICE OF THAT HEARING, AND (2) DISMISSING THOSE WRITTEN OBJECTIONS WELL BEFORE EXPIRATION OF THE 30-DAY DEADLINE UNDER CIV.R. 53(D)(3) FOR FILING THE HEARING TRANSCRIPTS, ON THE GROUNDS THAT DEFENDANT-APPELLANT DID NOT FILE A PRAECIPE TO THE COURT REPORTER AND PAY A DEPOSIT OF COSTS TO THE COURT REPORTER TO SECURE THE REQUIRED TRANSCRIPTS, WHERE THERE IS NO LOCAL RULE OR OTHER LEGAL REQUIREMENT THAT SUCH A PRAECIPE BE FILED AND COSTS OF THE TRANSCRIPTS BE PAID IN ADVANCE.”
{¶4} Husband argues that the trial court erred by adopting the magistrate’s findings of
fact and overruling his objections to the magistrate’s decision after a non-oral hearing based on
his failure to file a praecipe or pay costs to the court reporter to secure the preparation of a
transcript in support of his objections. This Court disagrees.
{¶5} Husband acknowledges that, pursuant to Civ.R. 53(D)(3)(b)(iii), he was required
to support his objections, all of which were premised on the magistrate’s factual findings, by a 3
transcript of the evidence submitted to the magistrate. He does not dispute that he failed to file,
contemporaneously with his objections, a praecipe with the court reporter requesting preparation
of a transcript of the proceedings. Instead, he further relies on Civ.R. 53(D)(3)(b)(iii) which
provides that the objecting party must file a transcript within thirty days after filing his
objections. Husband argues that the domestic relations court erred by ruling on his objections a
mere twelve days after he filed his objections, prior to the expiration of the thirty-day window in
which he could file a transcript. Significantly, he argues that “no duly adopted and published
Local Rule of Court” exists which requires the contemporaneous filing of a praecipe and
payment of a deposit, the noncompliance with which would authorize the trial court’s denial or
dismissal of his objections. Husband is incorrect.
{¶6} Loc. R. 1.07, in effect at the time Husband filed his objections, addresses the
preparation of transcripts of proceedings before a magistrate and states, in relevant part:
A. If a transcript is required, a praecipe to the Court Reporter requesting a transcript of the proceedings must be delivered to and acknowledged by the Court Reporter at the time of the filing of the Objection or Motion to Set Aside. Failure to timely file the praecipe may result in the denial or dismissal of an Objection or Motion to Set Aside.
B. A deposit of costs to secure the transcript must be paid to the Court Reporter within 7 days of the filing of the Objection or Motion to Set Aside. If the deposit for the costs of a transcript is not made within 14 days of the filing of the Objection or Motion to Set Aside, the Objection or Motion may be denied or dismissed.
{¶7} By failing to recognize the existence of the local rule which formed the
basis for the trial court’s denial of Husband’s objections, Husband has failed to make any
argument regarding the propriety or application of the rule. This Court has long
recognized that “[a]n appellant bears the burden of affirmatively demonstrating the error 4
on appeal, and substantiating his or her arguments in support.” Akron v. Meyer, 9th Dist.
No. 21882, 2004-Ohio-4457, ¶ 14, citing App.R. 16(A)(7).
{¶8} Husband further argues that the domestic relations court’s ruling on his objections
after a non-oral hearing violated his right to due process. He argues that the trial court violated
the requirements of notice and the opportunity to be heard at an oral hearing subsumed in Civ.R.
6(D). This Court disagrees.
{¶9} Civ.R. 6(D) addresses motions and provides, in relevant part, that “[a] written
motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be
served not later than seven days before the time fixed for the hearing * * *.” Husband did not
have a written motion pending before the domestic relations court. Rather, he had filed a notice
of objections to the magistrate’s decision. Civ.R. 6(D) does not address objections and does not
impute a notice and hearing requirement in regard to objections. Moreover, Husband cites no
legal authority in support of his argument that a trial court may not rule on objections to a
magistrate’s decision in the absence of an oral hearing on the matter.
{¶10} In further support of his argument, Husband cites Shell v. Shell, 5th Dist. No.
2010 CA 00026, 2010-Ohio-5813, at ¶ 24, in which the appellate court held that the domestic
relations court committed reversible error when it dismissed the wife’s contempt motion as
unripe without allowing a hearing. The Shell court did not rely on Civ.R. 6(D) and Husband
does not explain how the holding in Shell is applicable to the instant matter. Shell cites generally
to Matthews v. Eldridge, 424 U.S. 319 (1976), a case which held that due process does not
require an evidentiary hearing prior to the termination of social security disability benefits.
While recognizing that due process requires that an individual receive some form of hearing
prior to the deprivation of a property interest, id. at 333, the Matthews court did not enunciate a 5
requirement for an oral hearing under all circumstances and, significantly, did not address the
notion of due process with respect to a trial court’s ruling on objections to a magistrate’s
decision. Husband received notice and an opportunity to be heard at the hearing before the
magistrate regarding the complaint for divorce. Accordingly, he was properly accorded due
process prior to any potential deprivation of his property interests. He does not cite any authority
for the proposition that he is entitled to any further hearing merely because he filed objections to
the magistrate’s decision. While Civ.R. 53(D)(4)(b) allows a trial court to take additional
evidence or itself hear a matter previously referred to the magistrate, it does not mandate such
hearings. Accordingly, Husband has not demonstrated that the domestic relations court violated
his due process rights when it overruled his objections after a non-oral hearing.
{¶11} Husband’s assignment of error is overruled.
III.
{¶12} Husband’s sole assignment of error is overruled. The judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 6
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
BELFANCE, P. J. DICKINSON, J. CONCUR.
APPEARANCES:
BRUCE E. HALL, Attorney at Law, for Appellant.
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
KRISTOPHER K. AUPPERLE, Attorney at Law, for Appellee.