[Cite as In re C.H., 2020-Ohio-135.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
In re C.H. Court of Appeals No. E-18-063
Trial Court No. 2016 JB 0013
DECISION AND JUDGMENT
Decided: January 17, 2020
*****
Lurlia A. Oglesby, for appellant.
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, A.H. (“father”), appeals the judgment of the Erie County Court of
Common Pleas, Juvenile Division, awarding legal custody of father’s son, C.H., to the
child’s mother, K.L. (“mother”), and ordering father to pay child support. A. Facts and Procedural Background
{¶ 2} On February 3, 2016, mother filed a complaint with the trial court, in which
she sought an order from the court allocating parental rights and responsibilities for C.H.
between father and herself. In the complaint, mother sought to be designated C.H.’s
residential and legal custodian, and requested an award of child support for C.H., among
other things. Along with her complaint, mother filed an affidavit of income and
expenses, in which she recognized yearly income of $25,000 and estimated father’s
yearly income at $200,000. Mother further indicated that her monthly expenses totaled
$2,512.41, $700 of which was attributable to child-related expenses for C.H.
{¶ 3} The trial court set the matter for hearing, and mother proceeded with
discovery. During the discovery phase of these proceedings, mother propounded
discovery requests upon father on three separate occasions. Father failed to respond to
these requests, prompting mother to file a motion to compel discovery on October 4,
2016. In her motion, mother stated that her discovery requests were sent to father via
U.S. mail on July 22, 2016, hand-delivered to father at an August 31, 2016 pretrial
conference, and sent to father via U.S. mail a second time on September 1, 2016.
{¶ 4} On October 6, 2016, the trial court granted mother’s motion to compel
discovery, ordering father to comply with mother’s discovery requests no later than
November 11, 2016.
{¶ 5} On November 17, 2016, father filed his answer. The next day, mother filed
a motion for discovery sanctions and a motion to deem her requests for admissions
2. admitted. In her motion, mother asserted her belief that father’s refusal to comply with
her discovery requests was motivated by his desire to conceal his income to avoid paying
child support. Mother went on to add that
the income numbers set forth in the request for production of documents are
based on information provided to [her] by interviewing [father’s] friends,
business associates, as well as information provided to [her] by [father]
during their relationship, and that the figures are based on [her] best guess
as to how much income [father] earns, which [she] believes to be
substantial.
{¶ 6} Based upon father’s failure to respond to her repeated discovery requests,
mother requested a default judgment awarding her custody of C.H. and establishing child
support based upon an annual income of $250,000 for father and $30,000 for mother.
{¶ 7} On March 22, 2017, the trial court issued an interim child support order,
directing father to pay monthly interim child support in the amount of $600. Because
father did not comply with the child support order, mother filed a motion to show cause
on July 6, 2017. Two weeks later, the trial court issued an order directing father to
appear on September 14, 2017, and show cause as to why he should not be held in
contempt for failing to comply with the trial court’s support order.
{¶ 8} Additionally, on July 21, 2017, the trial court issued its order granting
mother’s motion for discovery sanctions and motion to deem her requests for admissions
admitted. Pursuant to the trial court’s order, mother was awarded legal custody of C.H.,
3. and father was “prohibited from opposing [mother’s] claims, from introducing evidence
at trial or otherwise supporting his claims, pursuant to Civ.R. 37(B)(1)(b).”
{¶ 9} On September 12, 2017, father filed a motion to strike mother’s discovery
requests. In his motion, father argued that mother’s discovery requests should be stricken
for five reasons. First, father complained that the discovery requests were improperly
served, having been served in a manner other than electronically without leave of the
court. Second, father argued that the 28-day time allowed for admissions in mother’s
discovery requests was improper. Third, father contended that mother’s instruction to
respond under oath by circling the response was improper under Civ.R. 36. Fourth,
father argued that three of mother’s requests for admission were ambiguous. Fifth, father
stated that mother had allowed him to supplement his answer throughout the proceedings,
and thus any supplement or amendment to father’s admissions would comply with
mother’s instructions.
{¶ 10} On January 9, 2018, the trial court’s magistrate issued an order denying
father’s motion to strike, and granted a motion for attorney’s fees filed by mother on
September 13, 2017.
{¶ 11} Thereafter, on August 30, 2018, the matter proceeded to a trial before a
magistrate. Mother and father were both present for trial. A transcript of the trial is not
part of the record on appeal.
{¶ 12} On October 9, 2018, the magistrate issued his decision, ordering father to
pay child support in the amount of $825.93 per month when health insurance is provided,
4. or $890.97 per month when health insurance is not provided. According to the findings
of fact contained within the magistrate’s decision, mother is a waitress with an annual
income of $35,242 for 2017. The magistrate found that although mother had recently
purchased “a number of rental properties,” they had not generated any taxable income up
to that point. As to father, the magistrate found that $50,000 was a reasonable annual
income for father, who is employed at International Jewelry, and rejected mother’s
estimate of father’s income based on the lack of evidentiary support for such an estimate.
{¶ 13} Following receipt of the magistrate’s decision, on October 24, 2018, father
filed a request for a recording of the August 30, 2018 trial proceedings. On the same day,
father filed a motion for an extension of time to file objections to the magistrate’s
decision, asserting that the trial transcripts were necessary in order to file the objections.
{¶ 14} On October 26, 2018, the trial court issued its judgment entry adopting the
findings of the magistrate and ordering father to pay child support in the amounts ordered
by the magistrate. On the same day, the trial court denied father’s motion for an
extension of time to file objections.
{¶ 15} Thereafter, on November 14, 2018, father filed his objections to the
magistrate’s decision. Before the court could rule on his objections, however, father filed
a notice of appeal with this court on November 26, 2018.
5. Assignments of Error
{¶ 16} On appeal, father assigns the following errors for our review:
Assignment of Error No. 1: The trial court abused its discretion in
not allowing the request for transcripts or recording: the absence of which
subsequently formed the basis for the trial court’s adoption of the
magistrate’s decision without regard to the father’s objections.
Assignment of Error No.
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[Cite as In re C.H., 2020-Ohio-135.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
In re C.H. Court of Appeals No. E-18-063
Trial Court No. 2016 JB 0013
DECISION AND JUDGMENT
Decided: January 17, 2020
*****
Lurlia A. Oglesby, for appellant.
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, A.H. (“father”), appeals the judgment of the Erie County Court of
Common Pleas, Juvenile Division, awarding legal custody of father’s son, C.H., to the
child’s mother, K.L. (“mother”), and ordering father to pay child support. A. Facts and Procedural Background
{¶ 2} On February 3, 2016, mother filed a complaint with the trial court, in which
she sought an order from the court allocating parental rights and responsibilities for C.H.
between father and herself. In the complaint, mother sought to be designated C.H.’s
residential and legal custodian, and requested an award of child support for C.H., among
other things. Along with her complaint, mother filed an affidavit of income and
expenses, in which she recognized yearly income of $25,000 and estimated father’s
yearly income at $200,000. Mother further indicated that her monthly expenses totaled
$2,512.41, $700 of which was attributable to child-related expenses for C.H.
{¶ 3} The trial court set the matter for hearing, and mother proceeded with
discovery. During the discovery phase of these proceedings, mother propounded
discovery requests upon father on three separate occasions. Father failed to respond to
these requests, prompting mother to file a motion to compel discovery on October 4,
2016. In her motion, mother stated that her discovery requests were sent to father via
U.S. mail on July 22, 2016, hand-delivered to father at an August 31, 2016 pretrial
conference, and sent to father via U.S. mail a second time on September 1, 2016.
{¶ 4} On October 6, 2016, the trial court granted mother’s motion to compel
discovery, ordering father to comply with mother’s discovery requests no later than
November 11, 2016.
{¶ 5} On November 17, 2016, father filed his answer. The next day, mother filed
a motion for discovery sanctions and a motion to deem her requests for admissions
2. admitted. In her motion, mother asserted her belief that father’s refusal to comply with
her discovery requests was motivated by his desire to conceal his income to avoid paying
child support. Mother went on to add that
the income numbers set forth in the request for production of documents are
based on information provided to [her] by interviewing [father’s] friends,
business associates, as well as information provided to [her] by [father]
during their relationship, and that the figures are based on [her] best guess
as to how much income [father] earns, which [she] believes to be
substantial.
{¶ 6} Based upon father’s failure to respond to her repeated discovery requests,
mother requested a default judgment awarding her custody of C.H. and establishing child
support based upon an annual income of $250,000 for father and $30,000 for mother.
{¶ 7} On March 22, 2017, the trial court issued an interim child support order,
directing father to pay monthly interim child support in the amount of $600. Because
father did not comply with the child support order, mother filed a motion to show cause
on July 6, 2017. Two weeks later, the trial court issued an order directing father to
appear on September 14, 2017, and show cause as to why he should not be held in
contempt for failing to comply with the trial court’s support order.
{¶ 8} Additionally, on July 21, 2017, the trial court issued its order granting
mother’s motion for discovery sanctions and motion to deem her requests for admissions
admitted. Pursuant to the trial court’s order, mother was awarded legal custody of C.H.,
3. and father was “prohibited from opposing [mother’s] claims, from introducing evidence
at trial or otherwise supporting his claims, pursuant to Civ.R. 37(B)(1)(b).”
{¶ 9} On September 12, 2017, father filed a motion to strike mother’s discovery
requests. In his motion, father argued that mother’s discovery requests should be stricken
for five reasons. First, father complained that the discovery requests were improperly
served, having been served in a manner other than electronically without leave of the
court. Second, father argued that the 28-day time allowed for admissions in mother’s
discovery requests was improper. Third, father contended that mother’s instruction to
respond under oath by circling the response was improper under Civ.R. 36. Fourth,
father argued that three of mother’s requests for admission were ambiguous. Fifth, father
stated that mother had allowed him to supplement his answer throughout the proceedings,
and thus any supplement or amendment to father’s admissions would comply with
mother’s instructions.
{¶ 10} On January 9, 2018, the trial court’s magistrate issued an order denying
father’s motion to strike, and granted a motion for attorney’s fees filed by mother on
September 13, 2017.
{¶ 11} Thereafter, on August 30, 2018, the matter proceeded to a trial before a
magistrate. Mother and father were both present for trial. A transcript of the trial is not
part of the record on appeal.
{¶ 12} On October 9, 2018, the magistrate issued his decision, ordering father to
pay child support in the amount of $825.93 per month when health insurance is provided,
4. or $890.97 per month when health insurance is not provided. According to the findings
of fact contained within the magistrate’s decision, mother is a waitress with an annual
income of $35,242 for 2017. The magistrate found that although mother had recently
purchased “a number of rental properties,” they had not generated any taxable income up
to that point. As to father, the magistrate found that $50,000 was a reasonable annual
income for father, who is employed at International Jewelry, and rejected mother’s
estimate of father’s income based on the lack of evidentiary support for such an estimate.
{¶ 13} Following receipt of the magistrate’s decision, on October 24, 2018, father
filed a request for a recording of the August 30, 2018 trial proceedings. On the same day,
father filed a motion for an extension of time to file objections to the magistrate’s
decision, asserting that the trial transcripts were necessary in order to file the objections.
{¶ 14} On October 26, 2018, the trial court issued its judgment entry adopting the
findings of the magistrate and ordering father to pay child support in the amounts ordered
by the magistrate. On the same day, the trial court denied father’s motion for an
extension of time to file objections.
{¶ 15} Thereafter, on November 14, 2018, father filed his objections to the
magistrate’s decision. Before the court could rule on his objections, however, father filed
a notice of appeal with this court on November 26, 2018.
5. Assignments of Error
{¶ 16} On appeal, father assigns the following errors for our review:
Assignment of Error No. 1: The trial court abused its discretion in
not allowing the request for transcripts or recording: the absence of which
subsequently formed the basis for the trial court’s adoption of the
magistrate’s decision without regard to the father’s objections.
Assignment of Error No. 2: The trial court abused its discretion on
de novo review in reaching the legal conclusion that for child support
purposes the mother’s earned income was $35,242 in wages when the
magistrate found that the mother owned a number of rental properties that
generated no income.
II. Analysis
{¶ 17} In his first assignment of error, father argues that the trial court abused its
discretion in denying his request for a recording of the trial proceedings, which was made
in an effort to support his objections to the magistrate’s decision following trial.
{¶ 18} At the outset, we note that the docket in this matter is silent as to the
disposition of father’s request for a recording. However, the docket does reflect the fact
that the trial court denied father’s motion for an extension of time to file objections to the
magistrate’s decision on the basis of its untimeliness. For the sake of argument, we will
treat the trial court’s denial of father’s motion for an extension of time as an implicit
6. denial of his request for a recording of the trial proceedings, which were requested in
order to assist in the preparation of father’s objections to the magistrate’s decision.
{¶ 19} Under Juv.R. 40(D)(3)(b)(i), a party must file written objections to a
magistrate’s decision within 14 days of the filing of the decision. Further, Juv.R.
40(D)(3)(b)(iii) requires the party objecting to the magistrate’s factual findings to support
the objections by submitting a transcript of the proceedings or an affidavit of that
evidence if a transcript is not available. Under the rule, the objecting party has 30 days
from the date on which the objections are filed to file the transcript or affidavit.
{¶ 20} In this case, the magistrate issued his decision on October 9, 2018. Father
filed his request for a recording of the trial proceedings and his motion for an extension
of time to file his objections to the magistrate’s decision on October 24, 2018, 15 days
after the magistrate’s decision and one day after the filing deadline for objections under
Juv.R. 40(D)(3)(b)(i). Father asserts that his request for a recording of the trial
proceedings was timely filed and should not have been implicitly denied, but he does not
challenge the trial court’s proper determination that the time period for filing objections
to the magistrate’s decision had expired by the time he sought an extension and access to
the recordings.
{¶ 21} Moreover, father provides no explanation as to why he was unable to file
timely objections. Although he may not have initially had access to the trial transcripts
when filing the objections, father would have been granted an additional 30 days from the
date of filing the objections to file the transcript under Juv.R. 40(D)(3)(b)(iii), and he
7. could have alternatively supported his objections by way of an affidavit of the evidence.
Moreover, had father filed objections in a timely fashion, he could have sought leave of
court to supplement the objections once a transcript was procured.
{¶ 22} Instead of filing timely objections to the magistrate’s decision under Juv.R.
40(D)(3)(b)(i), father waited 15 days to move for an extension of time to file such
objections. On these facts, we find that the trial court properly denied father’s request for
an extension of time to file objections. Because the recording that father requested was to
be used to support his untimely objections to the magistrate’s decision, we find that the
trial court did not err in denying his request for the recording.
{¶ 23} Accordingly, father’s first assignment of error is not well-taken.
{¶ 24} In his second assignment of error, father argues that the trial court erred in
calculating mother’s income based upon an erroneous conclusion that mother’s rental
properties had generated no income.
{¶ 25} Relevant here, Juv.R. 40(D)(3)(b)(iv) provides:
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,
whether or not specifically designated as a finding of fact or conclusion of
law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that
finding or conclusion as required by Juv.R. 40(D)(3)(b).
{¶ 26} As noted above, father failed to file timely objections to the magistrate’s
decision, in which the magistrate including findings of fact pertaining to mother’s rental
8. properties and the lack of income generated by those properties. Thus, father has waived
all but plain error. In re G.L., 10th Dist. Franklin No. 09AP-955, 2011-Ohio-1086, ¶ 9.
{¶ 27} In his brief to this court, father argues that the trial court erred in
calculating mother’s gross income with respect to her rental properties. In its entry, the
trial court found that mother’s waitressing job was her sole source of income, and went
on to state that the rental properties “generate no taxable income at this point.”
According to father, the trial court’s preoccupation with the taxability of the income
generated from the rental properties was in error because rental income is included in the
definition of “gross income” under R.C. 3119.01(C)(12) whether or not it is taxable.
{¶ 28} While it is true that nontaxable rental income is included in the definition
of gross income, we cannot say that the trial court committed plain error in its handling of
mother’s rental properties. The trial court’s entry can be read in a number of ways. First,
one could read the court’s entry to say that the trial court found that the rental properties
generated some income that was not taxable for one reason or another. Alternatively, one
could interpret the court’s entry to say that the rental properties had not yet generated any
income at all. The latter view seems to fit the surrounding circumstances, as the court
also noted that mother had “recently purchased” the rental properties. Notably, father has
failed to include a transcript of the proceedings or a statement of the evidence under
App.R. 9(C) in order to support his argument and establish whether or not mother’s rental
properties had generated any income, taxable or otherwise. Absent such materials, we
must presume the regularity of the trial court’s proceedings. Pardee v. Gregor Repass
9. Precision Motorcars, 6th Dist. Lucas No. L-01-1412, 2002-Ohio-3573, ¶ 14.
Consequently, father has not demonstrated plain error in the trial court’s calculation of
mother’s gross income.
{¶ 29} Accordingly, father’s second assignment of error is not well-taken.
III. Conclusion
{¶ 30} In light of the foregoing, the judgment of the Erie County Court of
Common Pleas, Juvenile Division, is affirmed. Father is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
10.