In re A.T.V.

2015 Ohio 4782

• Court: Ohio Court of Appeals
• Decided: November 20, 2015
• Docket: 2013-CA-59
• Status: Published

Opinion

[Cite as In re A.T.V., 2015-Ohio-4782.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

IN THE MATTER OF: A.T.V., II : : : Appellate Case No. 2013-CA-59 : : Trial Court Case No. 2011-JG-19 : : (Appeal from Common Pleas Court- : Juvenile Division) : :

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OPINION

Rendered on the 20th day of November, 2015.

A.V., SR., Urbana, Ohio 43078 Appellant-Pro Se

R.M., Urbana, Ohio 43078 Appellee-Pro Se

.............

WELBAUM, J. -2-

{¶ 1} In this case, A.T.V., Sr., appeals, pro se, from a judgment denying his motion

for custody of his minor son, A.T.V., II, and denying his motion for contempt, which was

filed against R.M., the child’s mother. 1 Father has failed to assign any specific

assignments of error in his brief, but it appears he is contending that the trial court denied

him due process in some unspecified ways by denying his motion for custody and by

leaving the minor child in a dangerous living situation.

{¶ 2} We conclude that even if Father had asserted any recognizable assignments

of error, we could not review them because Father failed to file a transcript of the

proceedings. He also did not furnish a statement of the proceedings pursuant to App.R.

9(C) or (D). As a result, we must presume the regularity of the proceedings below. In

addition, no due process violation is apparent on the face of the record, as Father had

notice and an opportunity to be heard with respect to his motion for change of custody.

Accordingly the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On May 15, 2013, Father filed a motion for emergency custody, alleging that

he feared for A.T.V.’s safety, due to domestic violence between Mother and a third party,

J.C. The following day, Father filed a motion for contempt against Mother, contending

that she had permitted J.C. to have contact with A.T.V., despite a no-contact order that

was in effect. The trial court held an evidentiary hearing in July 2013, and then continued

1 For purposes of convenience, we will refer to the parents as Father and Mother, and to the child as A.T.V. -3-

the matter for further hearing, so that Father could present evidence about a pending

Children Services’ case.

{¶ 4} In the meantime, Mother filed a motion for contempt against Father,

contending that he had failed to return A.T.V. to her on July 19, 2013, for her scheduled

vacation days. After the final evidentiary hearing was held, the trial court filed a decision,

concluding that J.C. had minor and incidental contact with A.T.V. However, the court

noted that Father, himself, had allowed the most contact, by permitting J.C. and A.T.V. to

interact on the basketball courts on Market Street.

{¶ 5} Because any contact was minor and incidental, the trial court refused to hold

Mother in contempt. The court further held that incidental contact was not a change in

circumstances warranting a change of custody from shared parenting to sole custody to

Father. In addition, the court refused to hold Father in contempt because a Civil

Protection Order was in effect when Father refused to turn over the child, and the court

concluded that Father may have been confused about the appropriate order to follow.

{¶ 6} Father filed a notice of appeal in November 2013. Subsequently, Father

received numerous extensions of time for the purposes of filing a written transcript, with

the last extension having expired on June 8, 2015. No transcript was ever filed, and

Father filed his brief on June 8, 2015. Mother did not file a responsive brief.

II. Due Process Claims

{¶ 7} As was noted, Father has not asserted a specific assignment of error in his

brief, and therefore, failed to comply with App.R. 16(A)(3). To the extent that we can

decipher the argument in his brief, Father appears to contend that the trial court somehow -4-

deprived him of due process by refusing to change custody from shared parenting to

Father’s sole custody.

{¶ 8} We cannot review this alleged error, because Father did not comply with

requirements for filing an appeal. In this regard, App.R. 9(A)(1) states that the record on

appeal includes the transcript of the proceedings. Under App.R. 9(A)(2), the trial court

must ensure the proceedings are recorded by a reliable method, which may include “a

stenographic/shorthand reporter, audio-recording device, and/or video-recording device.”

{¶ 9} App.R. 9(B)(1) further provides, with exceptions that are not relevant here,

that the appellant has the obligation “to ensure that the proceedings the appellant

considers necessary for inclusion in the record, however those proceedings were

recorded, are transcribed in a form that meets the specifications of App. R. 9(B)(6).”

Under App.R. 9(B)(3), the appellant is also required to “order the transcript in writing and

shall file a copy of the transcript order with the clerk of the trial court.”

{¶ 10} As was noted, Father received several extensions of time for purposes of

filing the written transcript. In July 2014, we filed a decision and entry rejecting Father’s

claim that a transcript should be provided because he could not afford to file a transcript.

We stressed that the State was not required to pay for a transcript, because this was not

a criminal case. See In the Matter of A.T.V., II, 2d Dist. Champaign No. 2013-CA-59

(July 16, 2014), p. 2, citing T.M. v. J.H., 6th Dist. Lucas Nos. L-10-1014, L-10-1034, 2011-

Ohio-283, ¶ 80, and Francis v. Francis, 9th Dist. Lorain No. 09CA009722, 2010-Ohio-

5659, ¶ 4. We suggested that Father could potentially avail himself of the alternate

means of providing a record, as set forth in App.R. 9(C) and (D). Id. However, Father

never resorted to any of these alternate means, and he never filed a written transcript. -5-

Instead, Father filed two CD-ROMs with his brief.

{¶ 11} Where no transcript or statement of the evidence has been provided, we

must presume the regularity of the proceedings below. Francis at ¶ 7, citing Knapp v.

Edwards Labs., 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Accord In re A.K., 2d

Dist. Champaign No. 2011 CA 15, 2012-Ohio-412, ¶ 15-17; Namenyi v. Tomasello, 2d

Dist. Greene No. 2013-CA-75, 2014-Ohio-4509, ¶ 29; Kahler v. Eytcheson, 2d Dist.

Montgomery No. 23523, 2012-Ohio-208, ¶ 24-25; and State v. Sutton, 9th Dist. Medina

No. 14CA0059-M, 2015-Ohio-2630, ¶ 4. The latter two cases specifically hold that

providing a CD-ROM does not satisfy the requirement of filing a written transcript under

App.R 9.

{¶ 12} As an additional matter, we see no evidence on the face of the record that

Father failed to receive due process. “The fundamental requisites of due process of law

in any proceeding are notice and the opportunity to be heard.” (Citations omitted.) In

re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 17. After Father filed his

motions, he was provided with two separate evidentiary hearings. Although we cannot

tell what occurred during those hearings, due to Father’s failure to file a written transcript

or a statement of the evidence pursuant to App.R. 9(C) or (D), we see no defect on the

face of the record. We also note that, according to Father’s brief, he received custody

of A.T.V. in December 2013, shortly after his appeal was filed.

{¶ 13} Accordingly, to the extent that Father’s assignments of error can be

deciphered, they are overruled.

III. Conclusion -6-

{¶ 14} All of Father’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

A.V., Sr. R.M. Hon. Brett A. Gilbert