Fritz v. Fritz

2013 Ohio 2536

• Court: Ohio Court of Appeals
• Decided: June 20, 2013
• Docket: 98977
• Status: Published

Opinion

[Cite as Fritz v. Fritz, 2013-Ohio-2536.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98977

VERONICA A. FRITZ PLAINTIFF-APPELLEE

vs.

TIMOTHY WERNER FRITZ DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case Nos. CP D-335502 and D-337114

BEFORE: Kilbane, J., Boyle, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: June 20, 2013 ATTORNEY FOR APPELLANT

Richard A. Goulder 15887 Snow Road Suite 301 Brook Park, Ohio 44142

ATTORNEY FOR APPELLEE

Susan P. Stauffer 1223 West Sixth Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Timothy Fritz (“Timothy”), appeals the trial court’s

judgment adopting the magistrate’s decision and granting a divorce to plaintiff-appellee,

Veronica Fritz (“Veronica”). For the following reasons, we affirm.

{¶2} In February 2011, Veronica filed for divorce from Timothy.1 They married

in 1995, and two children were born as issue of the marriage. At the time of the

complaint, one child was 16 years old and the other child was 6 years old. The matter

proceeded before a magistrate in May 2012. The magistrate issued a decision in June

2012, which was amended in July 2012. Timothy filed timely objections to the

magistrate’s decision, claiming the magistrate’s award of spousal support is not supported

by the evidence, the visitation provisions are unreasonable, the distribution of marital

property is inequitable, and the support calculations are unreasonable. However,

Timothy did not file a trial transcript or an affidavit with his objections as required by

Civ.R. 53(D)(3)(b)(iii).2 The trial court overruled Timothy’s objections and adopted the

magistrate’s decision in August 2012, which was corrected by a nunc pro tunc order in

September 2012.

1Timothy filed for divorce in June 2011; both cases were consolidated by the trial court. 2Civ.R. 53(D)(3)(b)(iii) provides that any objection to a magistrate’s 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.” {¶3} Timothy now appeals, raising the following five assignments of error for

review.

Assignment of Error One

The trial court erred in failing to consider [Veronica’s] voluntary unemployment and/or underemployment prior to awarding spousal support.

Assignment of Error Two

The trial court erred by not reserving jurisdiction to modify spousal support.

Assignment of Error Three

The trial court erred by failing to expand [Timothy’s] visitation with the parties’ minor child.

Assignment of Error Four

The trial court erred by awarding all motor vehicles to [Veronica].

Assignment of Error Five

The trial court erred in ordering [Timothy] to pay the sum of $5,372.64

annually in child support.

{¶4} As an initial matter, we must note that Timothy failed to file a transcript or

affidavit by which the trial court could review the magistrate’s findings of fact.

Timothy’s objections were filed in July 2012 and were ruled on by the trial court in

September 2012. Timothy did not file the transcript with the trial court until October

2012. As a result, the trial court was unable to conduct a meaningful and independent

review of the allegations contained in Timothy’s objections for lack of a transcript. We

must, therefore, presume regularity. Bailey v. Bailey, 8th Dist. No. 98173, 2012-Ohio-5073, ¶ 8. When an objecting party fails to timely file a transcript or

affidavit, a trial court must accept the magistrate’s findings of fact and limit its review to

the magistrate’s legal conclusions. Id., citing Snider v. Ohio Dept. of Rehab. & Corr.,

10th Dist. No. 11AP-965, 2012-Ohio-1665.

{¶5} On appeal, our review is limited to determining whether the trial court

abused its discretion in accepting and adopting the magistrate’s decision. Dancy v.

Dancy, 8th Dist. No. 82580, 2004-Ohio-470, ¶ 10. “The term ‘abuse of discretion’

connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” (Citations omitted.) Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62

Ohio St.2d 151, 404 N.E.2d 144 (1980).

In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.

Dancy at ¶ 11, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 1996-Ohio-159,

662 N.E.2d 1.

{¶6} We find no abuse of discretion in the trial court’s actions. The magistrate’s

decision extensively analyzed the proper legal standards used to determine spousal and

child support, child visitation, and the distribution of marital property. In our review of

the magistrate’s decision, we must accept the factual findings and find that the

appropriate rules of law were applied to those findings. The trial court had sufficient

basis upon which to analyze the issues and to apply appropriate rules of law in reaching its decision to adopt the magistrate’s decision and to issue an order for divorce in

accordance with those recommendations. See Dancy at ¶ 12.

{¶7} Therefore, the first, second, third, fourth, and fifth assignments of error are

overruled.

{¶8} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and KENNETH A. ROCCO, J., CONCUR