Baker v. Baker

2014 Ohio 5066

• Court: Ohio Court of Appeals
• Decided: November 14, 2014
• Docket: 26167
• Status: Published

Opinion

[Cite as Baker v. Baker, 2014-Ohio-5066.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

KATHLEEN M. BAKER :

Plaintiff-Appellant : C.A. CASE NO. 26167

v. : T.C. NO. 11DR46

RODNEY J. BAKER : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellee :

:

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OPINION

Rendered on the 14th day of November , 2014.

DAVID M. McNAMEE, Atty. Reg. No. 0068582, 2625 Commons Blvd., Suite A, Beavercreek, Ohio 45431 Attorney for Plaintiff-Appellant

SCOTT D. RUDNICK, Atty. Reg. No. 0000853, 121 W. Third Street, Greenville, Ohio 45331 Attorney for Defendant-Appellee

.......... 2

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Kathleen M.

Baker, filed April 11, 2014. Kathleen appeals from the trial court’s March 12, 2014

“Judgment Decree of Divorce.” We hereby affirm the judgment of the trial court.

{¶ 2} The record reflects that Kathleen and Rodney J. Baker were married on July

29, 1995, and that they have a daughter, born on March 7, 1999, as issue of the marriage.

The final decree provides in relevant part as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the

parties shall divide equally the accumulated contributions in the Defendant’s

PERS, as well as the Defendant’s Deferred Compensation account through

the State of Ohio, which shall also be divided as of the date of the parties’

separation (September 30, 2010). Any increase or decrease in said PERS or

Deferred Compensation occurring after September 30, 2010 shall be the sole

property of the Defendant. For purposes of dividing the Defendant’s PERS

account, the value of the Defendant’s PERS account to be divided shall be

reduced by the amount of the Plaintiff’s Social Security offset ($45,504.24),

as of September 30, 2010. * * *

{¶ 3} Kathleen asserts one assignment of error herein as follows:

“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

SIGNED AND FILED THE FINAL JUDGMENT AND DECREE OF DIVORCE WHEN

SAME WAS NOT CONSISTENT WITH WHAT WAS READ INTO THE RECORD,

SPECIFICALLY THE DIVISION OF RETIREMENT ASSETS.” 3

{¶ 4} According to Kathleen, “The Decree [states] that there shall be an offset of

Defendant’s PERS account against Plaintiff’s Social Security in the amount of $45, 504.24.

While Plaintiff does not dispute the fact that there should be an offset, a specific figure was

not read into the record and thus should not be included into (sic) the Decree. (TR. Pg. 11,

12.”

{¶ 5} A transcript of the final hearing is not in the file before us. As noted by the

Ohio Supreme Court:

The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of

showing error by reference to matters in the record. * * * When portions of

the transcript necessary for resolution of assigned errors are omitted from the

record, the reviewing court has nothing to pass upon and thus, as 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).

{¶ 6} In the absence of a transcript, we presume the validity of the trial court’s

proceedings. Kathleen’s assigned error is accordingly overruled, and the judgment of the

trial court is affirmed.

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

David M. McNamee Scott D. Rudnick 4

Hon. Denise L. Cross