[Cite as Erdman v. Williams, 2013-Ohio-979.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
DIANA ERDMAN AND JUDGES: THE TUSCARAWAS COUNTY Hon. W. Scott Gwin, P.J. CHILD SUPPORT ENFORCEMENT Hon. William B. Hoffman, J. AGENCY Hon. John W. Wise, J.
Plaintiffs-Appellees Case No. 2012 AP 07 0042
-vs- OPINION MARK A. WILLIAMS
Defendant-Appellant
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 2010 PA 00127
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Diana Erdman
DOUGLAS JACKSON MARK A. WILLIAMS, PRO SE 214 N. Dawson St. 484 2nd Dr. NE. Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663
For Tuscarawas County CSEA
Tuscarawas County CSEA 154 – 2nd Street NE New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2012 AP 07 0042 2
Hoffman, J.
{¶1} Defendant-appellant Mark Williams appeals the June 29, 2012 Judgment
Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division,
which overruled his objections to the magistrate’s May 31, 2012 decision, and approved
and adopted said decision as order of the court. Plaintiffs-appellees are Diana Erdman
and the Tuscarawas County Child Support Enforcement Agency.1
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the biological father of three of Erdman’s children. On April 9,
2010, Appellees filed a complaint to establish child support. Attached to the complaint
was an Administrative Order Establishing Child Support issued by CSEA. The trial
court adopted the administrative child support and related orders via Judgment Entry
filed May 21, 2010.
{¶3} On March 11, 2011, Erdman filed a complaint for custody. Appellant filed
a reply on March 16, 2011. The matter came on for hearing before the magistrate on
August 19, 2011. The magistrate issued her decision on September 26, 2011, finding it
was in the best interest of the minor children to grant legal custody to Erdman.
Appellant filed objections to the magistrate’s decision. The trial court conducted a
hearing on Appellant’s objections on October 21, 2011. Via Judgment Entry filed
November 1, 2011, the trial court overruled the objections, and approved and adopted
the magistrate’s decision as order of the court. The trial court indicated Appellant had
not provided the trial court with a transcript of the hearing before the magistrate.
Appellant did not file an appeal from this judgment entry.
1 Appellees have not filed a brief in this matter. Tuscarawas County, Case No. 2012 AP 07 0042 3
{¶4} On January 4, 2012, Appellant filed a motion for contempt, asserting
Erdman had failed to follow the court’s visitation order. The magistrate conducted a
hearing on the motion on January 17, 2012. Appellant did not appear at the hearing.
Via Decision filed January 23, 2012, the magistrate found Erdman had not violated the
court order as the trial court’s November 1, 2011 judgment entry did not set forth a
specific order of visitation. The magistrate recommended Appellant’s motion for
contempt be dismissed.
{¶5} Appellant filed a document labeled “Motion for Contempt” on February 1,
2012, requesting he be granted standard visitation with the children. The magistrate
ordered no action taken upon Appellant’s motion because the filing was neither a proper
motion for contempt nor a proper objection to the magistrate’s January 23, 2012
decision. The trial court approved and adopted the magistrate’s order, and dismissed
Appellant’s motion for contempt with prejudice.
{¶6} On March 7, 2012, Appellant filed a motion to modify orders regarding
visitation. The magistrate conducted a hearing on Appellant’s motion to modify on April
16, 2012, and May 24, 2012. On May 10, 2012, Appellant filed a motion to modify
orders, requesting shared parenting. Attached to the motion was Appellant’s proposed
shared parenting plan. Via Decision filed May 31, 2012, the magistrate denied
Appellant’s motion for shared parenting, finding such was not appropriate. The
magistrate also found Erdman had agreed to the court’s standard order of visitation with
the exception of extended visitations.
{¶7} Appellant filed objections to the magistrate’s decision. The trial court
scheduled a hearing on the objections for July 9, 2012. Erdman filed a response to the Tuscarawas County, Case No. 2012 AP 07 0042 4
objections, asserting the objections should be dismissed or overruled as she had not
been properly served. Via Judgment Entry filed June 29, 2012, the trial court cancelled
the hearing set for July 9, 2012, as a transcript of the proceedings before the magistrate
had neither been ordered nor prepared. Additionally, the trial court overruled
Appellant’s objections, and approved and adopted the magistrate’s decision as order of
the court.
{¶8} It is from this judgment entry Appellant appeals, assigning as error:
{¶9} “I. THE COURT ERRED WHEN IT ABUSED ITS DISCRETION IN
MAKING A RULING IN THE MATTER WITHOUT HAVING HEARD ALL OF THE
TESTIMONY AND FACTORING IN ALL OF THE EVIDENCE THAT WAS TO BE
PRESENTED.
{¶10} “II. THE MAGISTRATE SHOWED OBVIOUS BIAS IN THE HEARING,
NEGLECTING HER DUTY AS A JUDGE TO SHOW IMPARTIALITY AND INSURE A
FAIR TRIAL.
{¶11} “III. WHETHER THE TRIAL COURTS RULING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AS THERE WAS NO TESTIMONY
OFFERED OR TAKEN IN ORDER TO CONCLUDE THE EVENTUAL RULING.”
I, II, III
{¶12} Initially, we note Appellant's brief does not comply with the rules for a
proper brief as set forth in App.R. 16(A). Although Appellant’s brief includes a statement
of the assignments of error for review, the brief does not include a reference to the
place in the record where each error is reflected, in violation of App.R. 16(A)(3).
Further, Appellant does not support his arguments on appeal with references to the Tuscarawas County, Case No. 2012 AP 07 0042 5
record, legal citations, or other authority, in violation of App. R. 16(A)(7). Compliance
with the rule is mandatory. Appellant’s failure to comply with App. R. 16 is tantamount
to failing to file a brief in this matter. See, State v. Balderson (Sept. 27, 1999), Stark
App. No.1999CA00110, unreported; State v. Mattingly (Nov. 25, 1998), Ashland App.
No. 98COA01245, unreported. Although this Court has the authority under App.R.
18(C) to dismiss the appeal for failure to file a brief, we, nonetheless, in the interest of
justice, will not dispose of appellant's appeal based upon the deficiencies of his brief.
Such deficiencies permit this Court to dismiss Appellant's appeal.
{¶13} Appellant failed to file a transcript of the April 16, 2012, and May 24, 2012
hearings before the magistrate as required by App.R. 9(B). 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 Lab. (1980), 61 Ohio St.2d 197, 400 N.E.2d 384. Because
appellant has failed to provide this Court with those portions of the transcript necessary
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[Cite as Erdman v. Williams, 2013-Ohio-979.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
DIANA ERDMAN AND JUDGES: THE TUSCARAWAS COUNTY Hon. W. Scott Gwin, P.J. CHILD SUPPORT ENFORCEMENT Hon. William B. Hoffman, J. AGENCY Hon. John W. Wise, J.
Plaintiffs-Appellees Case No. 2012 AP 07 0042
-vs- OPINION MARK A. WILLIAMS
Defendant-Appellant
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 2010 PA 00127
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Diana Erdman
DOUGLAS JACKSON MARK A. WILLIAMS, PRO SE 214 N. Dawson St. 484 2nd Dr. NE. Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663
For Tuscarawas County CSEA
Tuscarawas County CSEA 154 – 2nd Street NE New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2012 AP 07 0042 2
Hoffman, J.
{¶1} Defendant-appellant Mark Williams appeals the June 29, 2012 Judgment
Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division,
which overruled his objections to the magistrate’s May 31, 2012 decision, and approved
and adopted said decision as order of the court. Plaintiffs-appellees are Diana Erdman
and the Tuscarawas County Child Support Enforcement Agency.1
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the biological father of three of Erdman’s children. On April 9,
2010, Appellees filed a complaint to establish child support. Attached to the complaint
was an Administrative Order Establishing Child Support issued by CSEA. The trial
court adopted the administrative child support and related orders via Judgment Entry
filed May 21, 2010.
{¶3} On March 11, 2011, Erdman filed a complaint for custody. Appellant filed
a reply on March 16, 2011. The matter came on for hearing before the magistrate on
August 19, 2011. The magistrate issued her decision on September 26, 2011, finding it
was in the best interest of the minor children to grant legal custody to Erdman.
Appellant filed objections to the magistrate’s decision. The trial court conducted a
hearing on Appellant’s objections on October 21, 2011. Via Judgment Entry filed
November 1, 2011, the trial court overruled the objections, and approved and adopted
the magistrate’s decision as order of the court. The trial court indicated Appellant had
not provided the trial court with a transcript of the hearing before the magistrate.
Appellant did not file an appeal from this judgment entry.
1 Appellees have not filed a brief in this matter. Tuscarawas County, Case No. 2012 AP 07 0042 3
{¶4} On January 4, 2012, Appellant filed a motion for contempt, asserting
Erdman had failed to follow the court’s visitation order. The magistrate conducted a
hearing on the motion on January 17, 2012. Appellant did not appear at the hearing.
Via Decision filed January 23, 2012, the magistrate found Erdman had not violated the
court order as the trial court’s November 1, 2011 judgment entry did not set forth a
specific order of visitation. The magistrate recommended Appellant’s motion for
contempt be dismissed.
{¶5} Appellant filed a document labeled “Motion for Contempt” on February 1,
2012, requesting he be granted standard visitation with the children. The magistrate
ordered no action taken upon Appellant’s motion because the filing was neither a proper
motion for contempt nor a proper objection to the magistrate’s January 23, 2012
decision. The trial court approved and adopted the magistrate’s order, and dismissed
Appellant’s motion for contempt with prejudice.
{¶6} On March 7, 2012, Appellant filed a motion to modify orders regarding
visitation. The magistrate conducted a hearing on Appellant’s motion to modify on April
16, 2012, and May 24, 2012. On May 10, 2012, Appellant filed a motion to modify
orders, requesting shared parenting. Attached to the motion was Appellant’s proposed
shared parenting plan. Via Decision filed May 31, 2012, the magistrate denied
Appellant’s motion for shared parenting, finding such was not appropriate. The
magistrate also found Erdman had agreed to the court’s standard order of visitation with
the exception of extended visitations.
{¶7} Appellant filed objections to the magistrate’s decision. The trial court
scheduled a hearing on the objections for July 9, 2012. Erdman filed a response to the Tuscarawas County, Case No. 2012 AP 07 0042 4
objections, asserting the objections should be dismissed or overruled as she had not
been properly served. Via Judgment Entry filed June 29, 2012, the trial court cancelled
the hearing set for July 9, 2012, as a transcript of the proceedings before the magistrate
had neither been ordered nor prepared. Additionally, the trial court overruled
Appellant’s objections, and approved and adopted the magistrate’s decision as order of
the court.
{¶8} It is from this judgment entry Appellant appeals, assigning as error:
{¶9} “I. THE COURT ERRED WHEN IT ABUSED ITS DISCRETION IN
MAKING A RULING IN THE MATTER WITHOUT HAVING HEARD ALL OF THE
TESTIMONY AND FACTORING IN ALL OF THE EVIDENCE THAT WAS TO BE
PRESENTED.
{¶10} “II. THE MAGISTRATE SHOWED OBVIOUS BIAS IN THE HEARING,
NEGLECTING HER DUTY AS A JUDGE TO SHOW IMPARTIALITY AND INSURE A
FAIR TRIAL.
{¶11} “III. WHETHER THE TRIAL COURTS RULING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AS THERE WAS NO TESTIMONY
OFFERED OR TAKEN IN ORDER TO CONCLUDE THE EVENTUAL RULING.”
I, II, III
{¶12} Initially, we note Appellant's brief does not comply with the rules for a
proper brief as set forth in App.R. 16(A). Although Appellant’s brief includes a statement
of the assignments of error for review, the brief does not include a reference to the
place in the record where each error is reflected, in violation of App.R. 16(A)(3).
Further, Appellant does not support his arguments on appeal with references to the Tuscarawas County, Case No. 2012 AP 07 0042 5
record, legal citations, or other authority, in violation of App. R. 16(A)(7). Compliance
with the rule is mandatory. Appellant’s failure to comply with App. R. 16 is tantamount
to failing to file a brief in this matter. See, State v. Balderson (Sept. 27, 1999), Stark
App. No.1999CA00110, unreported; State v. Mattingly (Nov. 25, 1998), Ashland App.
No. 98COA01245, unreported. Although this Court has the authority under App.R.
18(C) to dismiss the appeal for failure to file a brief, we, nonetheless, in the interest of
justice, will not dispose of appellant's appeal based upon the deficiencies of his brief.
Such deficiencies permit this Court to dismiss Appellant's appeal.
{¶13} Appellant failed to file a transcript of the April 16, 2012, and May 24, 2012
hearings before the magistrate as required by App.R. 9(B). 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 Lab. (1980), 61 Ohio St.2d 197, 400 N.E.2d 384. Because
appellant has failed to provide this Court with those portions of the transcript necessary
for resolution of the assigned errors, we must presume the regularity of the proceedings
below and affirm, pursuant to the directive set forth above in Knapp, supra.
{¶14} Appellant's assignments of error are overruled. Tuscarawas County, Case No. 2012 AP 07 0042 6
{¶15} The judgment of the Tuscarawas County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ John W. Wise _____________________ HON. JOHN W. WISE Tuscarawas County, Case No. 2012 AP 07 0042 7
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
DIANA ERDMAN AND : THE TUSCARAWAS COUNTY : CHILD SUPPORT ENFORCEMENT : AGENCY : : Plaintiffs-Appellees : : -vs- : JUDGMENT ENTRY : MARK A. WILLIAMS : : Defendant-Appellant : Case No. 2012 AP 07 0042
For the reason stated in our accompanying Opinion, the judgment of the
Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE