Gossard v. Gossard

2009 Ohio 6716

• Court: Ohio Court of Appeals
• Decided: December 21, 2009
• Docket: 6-09-09
• Status: Published

Opinion

[Cite as Gossard v. Gossard, 2009-Ohio-6716.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

HEATHER GOSSARD,

PLAINTIFF-APPELLEE, CASE NO. 6-09-09

v.

LARRY GOSSARD, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Domestic Relations Division Trial Court No. 20073021 DRB

Judgment Affirmed

Date of Decision: December 21, 2009

APPEARANCES:

Terry L. Hord for Appellant

Scott N. Barrett for Appellee Case No. 6-09-09

PRESTON, P.J.

{¶1} Defendant-appellant, Larry A. Gossard (hereinafter “Larry”),

appeals the Hardin County Court of Common Pleas’ judgment entry granting

plaintiff-appellee’s, Heather Gossard (hereinafter “Heather”), complaint for

divorce. The intervening bankruptcy trustee approves of the trial court’s judgment

with respect to its distribution of the parties’ tax refunds, and therefore, asks this

Court to affirm. For the reasons discussed herein, we affirm.

{¶2} Larry and Heather were married on June 17, 2006, and one child was

born as issue of the marriage, Bryce N. Wells-Gossard (d.o.b. 7/16/07). (Doc. No.

1, ¶1). On February 21, 2007, Heather filed a complaint for divorce alleging

incompatibility and gross neglect. (Id. at ¶¶4-5). On March 13, 2007, Larry filed

his answer and counterclaim for divorce alleging incompatibility but denying

Heather’s allegation of gross neglect. (Doc. No. 11).

{¶3} On August 29, 2007, the magistrate issued temporary orders,

including that Larry and Heather jointly file bankruptcy. (Doc. No. 53). Heather,

however, filed notice that filing bankruptcy was not financially necessary for her

and declining to do the same. (Doc. No. 55). On December 6, 2007, Larry filed a

notice that he filed for bankruptcy. (Doc. No. 59). As a result of Larry’s

bankruptcy filing, the bankruptcy trustee filed a motion to intervene on December

26, 2007, which the trial court granted the following day. (Doc. Nos. 61-62).

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{¶4} On July 23 and September 11 of 2008, the complaint and

counterclaim for divorce proceeded to a hearing before a magistrate. (Doc. Nos.

91, 103). On December 15, 2008, the magistrate issued a decision. (Doc. No.

103).

{¶5} On December 29, 2008, Larry filed objections to the magistrate’s

decision and a request for an extension of time to further delineate his objections

upon receipt of a transcript of the proceedings. (Doc. No. 104). The trial court

granted Larry’s motion for an extension of time on December 31, 2008. (Doc. No.

106).

{¶6} On January 13, 2009, Larry filed a motion to compel Heather to file

an application for Benefits for Children Medically Handicapped (BCMH) on

behalf of the parties’ minor child. (Doc. No. 108). On February 6, 2009, Heather

filed a motion requesting attorney’s fees for the cost of defending against said

motion. (Doc. No. 112). Thereafter, on March 26, 2009, Heather filed a motion

requesting attorney’s fees for defending against Larry’s several filed motions.

(Doc. No. 118).

{¶7} On April 20, 2009, Larry filed his further delineated objections to

the magistrate’s December 15, 2008 decision. (Doc. No. 126). On May 12, 2009,

the trial court adopted and approved the magistrate’s decision and granted the

parties a divorce. (Doc. No. 131).

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{¶8} On June 11, 2009, Larry filed a notice of appeal. (Doc. No. 137).

Larry now appeals raising eight assignments of error for our review. We find

Larry’s first assignment of error dispositive.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN FINDING THAT THE OBJECTIONS TO THE MAGISTRATE’S DECISION WERE NOT STATED WITH PARTICULARITY WHEN STATED FACTUALLY AND LEGALLY WITH REFERENCE TO THE TRANSCRIPT AND STIPULATIONS OF THE PROCEEDINGS.

{¶9} In his first assignment of error, Larry argues, in pertinent part, that

his objections were stated with particularity, and the trial court’s finding in this

regard was erroneous. Heather, on the other hand, contends that Larry’s

objections were not written with the specificity that Civ.R. 53(D)(3)(b)(ii) requires

as found by the trial court. We agree with Heather.

{¶10} Civ.R. 53(D)(3)(b)(ii) provides that “[a]n objection to a magistrate’s

decision shall be specific and state with particularity all grounds for objection.”

“[U]nder Civ.R. 53[D](3)(b), objections must be more than ‘indirectly addressed’:

they must be specific.” Young v. Young, 9th Dist. No. 22891, 2006-Ohio-2274, ¶5,

quoting Ayer v. Ayer (June 30, 2000), 1st Dist. No. C-990712, *3. When an

objecting party fails to state an objection with particularity as required under

Civ.R. 53(D)(3)(b), the trial court may affirm the magistrate’s decision without

considering the merits of the objection. Triozzi-Hartman v. Hartman, 11th Dist.

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No. 2006-G-2701, 2007-Ohio-5781, ¶15, citing Waddle v. Waddle (Mar. 30,

2001), 11th Dist. No.2000-A-0016, *9-10. Similarly, “[i]f no timely objections

are filed, the court may adopt a magistrate’s decision, unless it determines that

there is an error of law or other defect evident on the face of the magistrate’s

decision.” Civ.R. 53(D)(4)(c). “Except for a claim of plain error, a party shall not

assign as error on appeal the court’s adoption of any factual finding or legal

conclusion * * * unless the party has objected to that finding or conclusion as

required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv) (emphasis added).

{¶11} The trial court sub judice reviewed Larry’s objections filed April 20,

20091 and concluded:

This Court finds that Defendant’s pleading styled “Civil Rule 53 Objections to the Magistrate Decision Rendered December 15, 2008, with Reference to the Transcript of the Hearing On this Matter” filed April 20th, 2009, does not state any objections with specificity, nor does it state with particularity all grounds for objections as required by Civil Rule 53(D)(3)(b)(ii). The case law states that objections must be more than “indirectly addressed”; they must be specific and detailed. This is certainly not true in the pleading filed by Larry Gossard. Notwithstanding the failure of Defendant to delineate any detailed, specific Objections, the Court, upon independent review of the December 15th, 2008 Magistrate’s Decision, finds that there is sufficient information contained therein to allow a determination as to the appropriateness of same. Accordingly, there being no error of law or defect on the face of said Decision, the Court adopts and approves the findings

1 We note that Larry filed initial objections on December 29, 2008, within Civ.R. 53(D)(3)(b)(i)’s fourteen- day filing deadline, and requested for an extension of time to further delineate his objections after a transcript of the proceedings was completed. (Doc. No. 104). The trial court granted said extension on December 31, 2008. (Doc. No. 106).

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of fact and conclusions of law contained therein and makes the same the Order of this Court, without modification.

(May 12, 2009 JE, Doc. No. 131).

{¶12} Upon independent review of objections filed by Larry Gossard on

April 20, 2009, we conclude that the trial court did not err in finding that Larry’s

objections failed to meet Civ.R. 53(D)(3)(b)(ii)’s specificity and particularity

requirements. Larry’s filing is twenty-one (21) pages, single-spaced. (Doc. No.

126).2 The document appears to be divided into two main sections: the first

section, though not entitled as such, recites—in lengthy narrative paragraphs—the

alleged factual errors made by the magistrate with citations to the transcript; the

second section is entitled “LEGAL ERRORS” and—again in lengthy narrative

paragraphs— catalogues several alleged errors of law made by the magistrate with

legal citations tacked on the narration. (Doc. No. 126). Although Larry’s filing

makes some affirmative statements such as “the Magistrate failed to recognize this

factor” or it was “error for the Magistrate to * * *,” these statements were not

specified or particularized as objections such that the trial court could identify

them as such. In fact, two triers of fact carefully reading Larry’s filing for

potential objections would likely have two different lists. Civ.R. 53(D)(3)(b)(ii)

clearly places the burden upon the objecting party to identify with specificity and

2 We note that Larry’s April 20, 2009 filing is essentially, if not word for word, the exact document he filed on December 29, 2008. The only apparent difference is that the later has citations to the transcript. (Doc. Nos. 104, 126).

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particularity their objections. It was not the trial court’s responsibility to read

Larry’s twenty-one page, single space filing and decipher potential objections.

{¶13} Therefore, Larry’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

FAILING TO ISSUE A SHARED PARENTING PLAN AS SUBMITTED BY THE APPELLANT IS NOT IN THE BEST INTEREST OF THE CHILD WITH SPECIAL MEDICAL NEEDS.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO THE APPELLEE WHEN THE APPELLEE FAILED TO TIMELY PRODUCE DOCUMENTS AFTER SEVERAL ATTEMPTS BY THE APPELLANTS TO SEEK THE SAME AND THEN THE TRIAL COURT USED EQUITY TO OFFSET THE ATTORNEY FEES THAT WERE AWARDED APPELLEE[.]

ASSIGNMENT OF ERROR IV

THE COURT ERRED IN FAILING TO TAKE INTO CONSIDERATION THE SECOND MORTGAGE PLACED ON APPELLANT’S MARITAL HOME DURING THE MARRIAGE AND FUNDS TAKEN BY APPELLEE FROM THE ACCOUNT.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED BY AWARDING THE APPELLANT’S PRE-MARITAL CAR TO THE APPELLEE AND DEVALUED THE CAR FOR EQUITY IN THE PROPERTY DISTRIBUTION TO THE APPELLEE DUE TO THE WASTE OF THE APPELLEE.

7 Case No. 6-09-09

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED BY AWARDING THE CHILD TAX EXEMPTION TO APPELLEE.

ASSIGNMENT OF ERROR VII

COURT ERRED IN FAILING TO DETERMINE A DE- FACTO TERMINATION OF MARRIAGE DATE OF THE MARRIAGE WAS THE DATE THE APPELLEE VACATED THE PRE-MARITAL HOME JANUARY 5, 2007.

ASSIGNMENT OF ERROR VII [SIC]

COURT ERRED IN FAILING TO DETERMINE FINANCIAL MISCONDUCT ON THE PART OF PLAINTIFF-APPELLEE.

{¶14} Larry has presented seven remaining assignments of error for our

review.

{¶15} Civ.R. 53(D)(3)(b)(iv), however, provides, that “[e]xcept for a claim

of plain error, a party shall not assign as error on appeal the court’s adoption of

any factual finding or legal conclusion * * * unless the party has objected to that

finding or conclusion as required by Civ.R. 53(D)(3)(b).” As we have already

found, Larry has failed to object as required under Civ.R. 53(D)(3)(b)(ii), and

therefore, he has waived all but plain error on appeal. With the exception of his

eighth assignment of error, Larry has not asserted plain error on appeal, and thus,

we need not consider his second, third, fourth, fifth, sixth, and seventh

assignments of error further. See, e.g., Cravens v. Cravens, 12th Dist. No.

CA2008-02-033, 2009-Ohio-1733, ¶31, citing Civ.R. 53(D)(3)(b)(ii), (iv); Marder

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v. Marder, 12th Dist. No. CA2007-06-069, 2008-Ohio-2500, ¶42. Aside from

that, the trial court reviewed the magistrate’s decision in accordance with Civ.R.

53(D)(4)(c) and concluded that the decision did not contain an error of law or

other defect evident on its face. We find no error in the trial court’s Civ.R.

53(D)(4)(c) determination.

{¶16} Larry’s second, third, fourth, fifth, sixth, and seventh assignments of

error are, therefore, overruled.

{¶17} In his eighth assignment of error, Larry argues that the trial court

committed plain error when it failed to consider Heather’s alleged financial

misconduct upon review of the magistrate’s decision. We disagree.

{¶18} “A ‘plain error’ is obvious and prejudicial although neither objected

to nor affirmatively waived which, if permitted, would have a material adverse

affect on the character and public confidence in judicial proceedings.” Brandon v.

Brandon, 3d Dist. No. 10-08-13, 2009-Ohio-3818, ¶38, quoting Schade v.

Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 436 N.E.2d 1001. “[I]n

appeals of civil cases, the plain error doctrine is not favored and may be applied

only in the extremely rare case involving exceptional circumstances where error,

to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging

the legitimacy of the underlying judicial process itself.” Brandon, 2009-Ohio-

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3818, at ¶37, quoting Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d

1099, syllabus.

{¶19} The magistrate found that Larry failed to demonstrate Heather

committed financial misconduct with regard to several of his allegations. (Dec. 18,

2008 Decision, Doc. No. 103). Specifically, the magistrate found that Larry failed

to demonstrate how Heather profited from her actions or effectively impeded his

right to an equitable division of marital property. (Id.). Finally, the magistrate

found that most of the money Heather withdrew from Larry’s checking account

was used for necessities. (Id.). With regard to those items the magistrate found

unreasonable, Heather was ordered to reimburse Larry in the amount of $2,112.07.

(Id.). The trial court, for its part, approved and adopted the magistrate’s decision

in its entirety, which included the $2,112.07 reimbursement for those items

Heather purchased, which the magistrate found unreasonable. (May 12, 2009 JE,

Doc. No. 131, Exhibit A attached).

{¶20} Before compensating a spouse for the offending spouse’s financial

misconduct, “there must be a clear showing that the offending spouse either

profited from the alleged misconduct or intentionally defeated the other spouse’s

distribution of assets.” Eggeman v. Eggeman, 3d Dist. No. 2-04-06, 2004-Ohio-

6050, ¶24, citing Wideman v. Wideman, 6th Dist. No. WD-02-30, 2003-Ohio-

1858, ¶34; Detlef v. Detlef (Dec. 14, 2001), 6th Dist. No. L-00-1137. After

10 Case No. 6-09-09

reviewing the testimony, the magistrate concluded that Larry had failed to meet

this burden with respect to several of his allegations of financial misconduct. We

cannot conclude that the magistrate’s decision, or the trial court’s adoption

thereof, in this regard amounted to plain error that “seriously affect[ed] the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging

the legitimacy of the underlying judicial process itself.” Brandon, 2009-Ohio-

3818, at ¶37, quoting Davidson, 79 Ohio St.3d 116, syllabus.

{¶21} Larry’s eighth and final assignment of error is, therefore, overruled.

{¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

ROGERS and SHAW, J.J., concur.

/jlr