Berry-Silverman v. Silverman

2023 Ohio 824

Opinion

[Cite as Berry-Silverman v. Silverman, 2023-Ohio-824.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

MELISSA BERRY-SILVERMAN JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 21 CAF 12 0065 ANDREW SILVERMAN

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 20 DRB 07 0346

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 16, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

CHRISTOPHER L. TROLINGER ANDREW S. GROSSMAN ELIZABETH R. ROBERTO JOHN H. COUSINS IV 175 S. 3rd Street MARGARET M. HUCK Suite 720 GROSSMAN LAW OFFICES Columbus, Ohio 43215 32 W. Hoster Street, Suite 100 Columbus, Ohio 43215 Delaware County, Case No. 21 CAF 12 0065 2

Wise, J.

{¶1} Plaintiff-Appellant Melissa Berry-Silverman appeals the November 23, 2021

judgment entry of the Delaware County Court of Common Pleas, Domestic Relations

Division. Appellee is Andrew Silverman.

FACTS AND PROCEDURAL HISTORY

{¶2} On July 2, 2020, Appellant filed a divorce action against Appellee.

{¶3} On August 24, 2021, the action proceeded to a trial before a magistrate in

the Delaware County Court of Common Pleas, Domestic Relations Division.

{¶4} On September 28, 2021, the magistrate issued findings of facts and

conclusions of law.

{¶5} On October 13, 2021, the trial court filed a Certification of Audio Transcript,

providing the audio disk of the trial to Appellant.

{¶6} On October 21, 2021, Appellant filed objections pursuant to Civ.R.

53(D)(3)(b). In the objections, Appellant sought leave to file an amended memorandum

in support of the objections with citations to the written transcript once available.

{¶7} Appellant informed the trial court that the transcript had been ordered.

{¶8} On November 19, 2021, the court reporter informed Appellant the trial

transcript was prepared. PRI, Inc. made a request of Appellant for payment to have the

transcript bound and filed. Appellant made payment.

{¶9} On November 23, 2021, the trial court issued a judgment entry overruling

all of Appellant’s objections to the magistrate’s findings of facts and conclusions of law

before PRI, Inc. filed the transcript. Delaware County, Case No. 21 CAF 12 0065 3

{¶10} On December 6, 2021, Appellant filed a Motion for Relief from Judgment

pursuant to Civ.R. 60(B).

{¶11} On December 11, 2021, Appellant filed a Motion to Admit Additional

Evidence, pursuant to Civ.R. 53(D)(4)(d).

ASSIGNMENTS OF ERROR

{¶12} Appellant filed a timely notice of appeal and herein raises the following

Assignments of Error.

{¶13} “I. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE

PLAINTIFF-APPELLANT, IN AN ABUSE OF ITS DISCRETION, BY OVERRULING HER

OBJECTIONS FILED PURSUANT TO CIVIL RULE 53.

{¶14} “II. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE

DEFENDANT-APPELLANT, BY NOT GRANTING THE PLAINTIFF-APPELLANT’S

MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60(B).”

I.

{¶15} In her first Assignment of Error, Appellant argues the trial court abused its

discretion by overruling Appellant’s objections to the magistrate’s findings of facts and

conclusions of law without the filing of the written transcript. We disagree.

{¶16} Civ.R. 53(D)(3)(b)(iii) states:

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, Delaware County, Case No. 21 CAF 12 0065 4

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.

{¶17} This Court has previously held that if an appellant fails to file a transcript of

the trial proceedings with his objections to the magistrate’s findings of fact, “the factual

findings of the magistrate are deemed established and may not be attacked on appeal.”

Doane v. Doane, 5th Dist. Guernsey No 00CA21, 2001 WL 474267, *3 (May 2, 2001).

Accordingly, we review whether the trial court abused its discretion in reaching specific

legal conclusions. Id. The abuse of discretion standard is more than an error of judgment;

it implies the court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶18} Delaware Domestic Local Court Rule 27.04(E) provides, in pertinent part:

“Any party who files an objection shall have 14 days to file a supplemental brief after the

filing of the transcript with the court.”

{¶19} In the case sub judice, Appellant filed her objections on October 21, 2021.

According to Civ.R. 53(D)(3)(b)(iii), the transcript had to be filed by November 20, 2021.

The record fails to show a transcript was filed with the court at this time, or that Appellant

requested an extension to file the transcript. The trial court overruled Appellant’s

objections because a transcript was not timely filed. Delaware Domestic Local Court

Rule 27.04(E) grants a party 14 days to file a supplemental brief after the filing of the Delaware County, Case No. 21 CAF 12 0065 5

transcript. This rule presupposes that a transcript has appropriately been filed with the

trial court. As no transcript was ever filed, the additional fourteen days to file a

supplemental brief is never triggered. As such, the trial court did not abuse its discretion

in overruling Appellant’s objections to the magistrate’s decision.

{¶20} Appellant’s first Assignment of Error is overruled.

II.

{¶21} Appellant argues in her second Assignment of Error the trial court erred by

failing to grant Appellant’s Motion for Relief from Judgment. However, Appellant asserts

in her reply brief that she has withdrawn this assignment of error. Accordingly, we need

not address it.

{¶22} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, Delaware County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

JWW/br 0308 Delaware County, Case No. 21 CAF 12 0065 6