[Cite as In re K.S., 2013-Ohio-5004.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN RE: Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
K.S., W.O., and J.O. Case No. 13 CA 19
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 01 JC 00486
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 12, 2013
APPEARANCES:
For Appellee For Appellant-Obligor
ANDREW J. WARHOLA 110 North 7th Street Cambridge, Ohio 43725 Guernsey County, Case No. 13 CA 19 2
Wise, P. J.
{¶1} Appellant Russell T. Osborne appeals from the decision of the Court of
Common Pleas, Juvenile Division, Guernsey County, which found him in contempt of
court for failure to pay his child support and arrearage obligations. The relevant facts
leading to this appeal are as follows.
{¶2} Appellant is the father of W.O., born in 1994, and J.O., born in 1997. On
June 8, 2001, W.O. and J.O., along with their half-sister, K.S., were the subject of a
dependency/neglect action filed by the Guernsey County Children Services Board. The
trial court thereafter ordered any support orders for the children to be redirected to his
temporary custodian(s). The trial court record indicates that W.O. and J.O. were put in
relative custody with their paternal grandmother, Nancy Osborne, although W.O. was
apparently returned to the custody of his mother, Heather Smith, in 2011.
{¶3} Appellant has repeatedly failed to pay support, resulting in an arrearage of
more than $6,700.00. Appellant is also under a court order to pay $49.55 per month
toward his arrearages. In February 2012, appellant was ordered to serve 30 days in jail
for contempt.
{¶4} Guernsey County CSEA filed another motion to show cause (contempt) on
January 14, 2013. The matter proceeded to a hearing before a magistrate on March 4,
2013. The magistrate, on March 6, 2013, found appellant in contempt and ordered him
to serve 30 days in jail, with the main purge provision of appellant paying his $6,751.41
arrearage amount down to no more than $6,000.00 by May 31, 2013. Guernsey County, Case No. 13 CA 19 3
{¶5} Appellant timely filed an objection to the decision of the magistrate. On
April 15, 2013, the trial court issued a judgment entry adopting the decision of the
magistrate.
{¶6} Appellant filed a notice of appeal on May 14, 2013.1 He herein raises the
following two Assignments of Error:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
APPELLANT IN CONTEMPT OF COURT WHEN APPELLANT PRESENTED
UNREBUTTED TESTIMONY AND EVIDENCE THAT IT WAS NOT IN HIS POWER TO
OBEY THE CHILD SUPPORT ORDERS OF THE COURT.
{¶8} “II. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW
AND ERRED IN IMPOSING PURGE CONDITIONS UPON APPELLANT THAT WERE
UNREASONABLE AND NOT POSSIBLE FOR HIM TO SATISFY WITHIN THE TIME
LIMITS ORDERED.”
I., II.
{¶9} In his First and Second Assignments of Error, appellant contends the trial
court erred and/or abused its discretion in finding him in contempt of court and in
imposing certain purge conditions regarding the contempt ruling.
{¶10} As an initial matter, we are compelled to review the status of the transcript
in this case. We have held on numerous occasions that where an appellant fails to
provide a transcript of the original hearing before the magistrate for the trial court's
review, the magistrate's findings of fact are considered established. See, e.g., State v.
Leite (April 11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court
1 CSEA has not filed a response brief in this appeal. Guernsey County, Case No. 13 CA 19 4
has determined that in such a situation, “* * * the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate record.” See State
ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d
1254. “[T]he reviewing court is only permitted to determine if the application of the law
was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist.
Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18. Furthermore, “[t]here is no abuse of
discretion on the part of the trial court in its decision to overrule objections to factual
findings where the party objecting has failed to file a transcript.” Remner v. Peshek
(Sept. 30, 1999), Mahoning App.No. 97–CA–98, 1999 WL 803441 (additional citation
omitted).
{¶11} In the case sub judice, the transcript of the magistrate’s hearing appears
to have been prepared in time for the present appeal, but not for the trial court’s review
of appellant’s objection to the decision of the magistrate. Said transcript has on its cover
only a “Court of Appeals” file-stamp date of July 23, 2013, several months after the trial
court’s April 15, 2013 ruling on the objection. Furthermore, the trial court stated in that
ruling: “The respondent requested this court to waive the requirement of a transcript and
requested that this court review the audio tape of the proceedings of March 4, 2013.”
Judgment Entry at 1. Finally, the trial court docket shows no request or praecipe for the
preparation of a transcript prior to the notice of appeal to this Court. We therefore
conclude that appellant's objection to the decision of the magistrate was not
accompanied by a transcript of the proceedings before the magistrate. Furthermore,
the trial court did not specifically grant leave to allow presentation of the evidence via
alternative means as set forth in Juv.R. 40(D)(3)(b)(iii). Guernsey County, Case No. 13 CA 19 5
{¶12} Contempt has been defined as the disregard for judicial authority. State v.
Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “A finding of civil contempt does not
require proof of purposeful, willing, or intentional violation of a trial court's prior order.”
Townsend v. Townsend, Lawrence App. No. 08CA9, 2008–Ohio–6701, ¶ 27, citing
Pugh v. Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. In this instance, the
magistrate determined that appellant had failed to pay as ordered, resulting in an
arrearage of $6,751.41 as of February 28, 2013. Appellant essentially urges that based
on the exhibits presented to the magistrate documenting his prior felony convictions,
incarcerations, and sex offender status, he has no ability to pay on his arrearage
obligation and purge provisions. However, upon our limited review under the
circumstances of this case (Eiselstein, supra), we find no error or abuse of discretion in
the trial court's application of the law to the magistrate's findings of fact.
{¶13} Appellant's First and Second Assignments of Error are therefore
overruled.
{¶14} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.
By: Wise, P. J. Delaney, J., and Baldwin, J., concur. ___________________________________ HON. JOHN W. WISE
___________________________________ HON. PATRICIA A. DELANEY
___________________________________ HON. CRAIG R. BALDWIN
JWW/d 1009 Guernsey County, Case No. 13 CA 19 6
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[Cite as In re K.S., 2013-Ohio-5004.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN RE: Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
K.S., W.O., and J.O. Case No. 13 CA 19
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 01 JC 00486
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 12, 2013
APPEARANCES:
For Appellee For Appellant-Obligor
ANDREW J. WARHOLA 110 North 7th Street Cambridge, Ohio 43725 Guernsey County, Case No. 13 CA 19 2
Wise, P. J.
{¶1} Appellant Russell T. Osborne appeals from the decision of the Court of
Common Pleas, Juvenile Division, Guernsey County, which found him in contempt of
court for failure to pay his child support and arrearage obligations. The relevant facts
leading to this appeal are as follows.
{¶2} Appellant is the father of W.O., born in 1994, and J.O., born in 1997. On
June 8, 2001, W.O. and J.O., along with their half-sister, K.S., were the subject of a
dependency/neglect action filed by the Guernsey County Children Services Board. The
trial court thereafter ordered any support orders for the children to be redirected to his
temporary custodian(s). The trial court record indicates that W.O. and J.O. were put in
relative custody with their paternal grandmother, Nancy Osborne, although W.O. was
apparently returned to the custody of his mother, Heather Smith, in 2011.
{¶3} Appellant has repeatedly failed to pay support, resulting in an arrearage of
more than $6,700.00. Appellant is also under a court order to pay $49.55 per month
toward his arrearages. In February 2012, appellant was ordered to serve 30 days in jail
for contempt.
{¶4} Guernsey County CSEA filed another motion to show cause (contempt) on
January 14, 2013. The matter proceeded to a hearing before a magistrate on March 4,
2013. The magistrate, on March 6, 2013, found appellant in contempt and ordered him
to serve 30 days in jail, with the main purge provision of appellant paying his $6,751.41
arrearage amount down to no more than $6,000.00 by May 31, 2013. Guernsey County, Case No. 13 CA 19 3
{¶5} Appellant timely filed an objection to the decision of the magistrate. On
April 15, 2013, the trial court issued a judgment entry adopting the decision of the
magistrate.
{¶6} Appellant filed a notice of appeal on May 14, 2013.1 He herein raises the
following two Assignments of Error:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
APPELLANT IN CONTEMPT OF COURT WHEN APPELLANT PRESENTED
UNREBUTTED TESTIMONY AND EVIDENCE THAT IT WAS NOT IN HIS POWER TO
OBEY THE CHILD SUPPORT ORDERS OF THE COURT.
{¶8} “II. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW
AND ERRED IN IMPOSING PURGE CONDITIONS UPON APPELLANT THAT WERE
UNREASONABLE AND NOT POSSIBLE FOR HIM TO SATISFY WITHIN THE TIME
LIMITS ORDERED.”
I., II.
{¶9} In his First and Second Assignments of Error, appellant contends the trial
court erred and/or abused its discretion in finding him in contempt of court and in
imposing certain purge conditions regarding the contempt ruling.
{¶10} As an initial matter, we are compelled to review the status of the transcript
in this case. We have held on numerous occasions that where an appellant fails to
provide a transcript of the original hearing before the magistrate for the trial court's
review, the magistrate's findings of fact are considered established. See, e.g., State v.
Leite (April 11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court
1 CSEA has not filed a response brief in this appeal. Guernsey County, Case No. 13 CA 19 4
has determined that in such a situation, “* * * the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate record.” See State
ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d
1254. “[T]he reviewing court is only permitted to determine if the application of the law
was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist.
Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18. Furthermore, “[t]here is no abuse of
discretion on the part of the trial court in its decision to overrule objections to factual
findings where the party objecting has failed to file a transcript.” Remner v. Peshek
(Sept. 30, 1999), Mahoning App.No. 97–CA–98, 1999 WL 803441 (additional citation
omitted).
{¶11} In the case sub judice, the transcript of the magistrate’s hearing appears
to have been prepared in time for the present appeal, but not for the trial court’s review
of appellant’s objection to the decision of the magistrate. Said transcript has on its cover
only a “Court of Appeals” file-stamp date of July 23, 2013, several months after the trial
court’s April 15, 2013 ruling on the objection. Furthermore, the trial court stated in that
ruling: “The respondent requested this court to waive the requirement of a transcript and
requested that this court review the audio tape of the proceedings of March 4, 2013.”
Judgment Entry at 1. Finally, the trial court docket shows no request or praecipe for the
preparation of a transcript prior to the notice of appeal to this Court. We therefore
conclude that appellant's objection to the decision of the magistrate was not
accompanied by a transcript of the proceedings before the magistrate. Furthermore,
the trial court did not specifically grant leave to allow presentation of the evidence via
alternative means as set forth in Juv.R. 40(D)(3)(b)(iii). Guernsey County, Case No. 13 CA 19 5
{¶12} Contempt has been defined as the disregard for judicial authority. State v.
Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “A finding of civil contempt does not
require proof of purposeful, willing, or intentional violation of a trial court's prior order.”
Townsend v. Townsend, Lawrence App. No. 08CA9, 2008–Ohio–6701, ¶ 27, citing
Pugh v. Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. In this instance, the
magistrate determined that appellant had failed to pay as ordered, resulting in an
arrearage of $6,751.41 as of February 28, 2013. Appellant essentially urges that based
on the exhibits presented to the magistrate documenting his prior felony convictions,
incarcerations, and sex offender status, he has no ability to pay on his arrearage
obligation and purge provisions. However, upon our limited review under the
circumstances of this case (Eiselstein, supra), we find no error or abuse of discretion in
the trial court's application of the law to the magistrate's findings of fact.
{¶13} Appellant's First and Second Assignments of Error are therefore
overruled.
{¶14} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.
By: Wise, P. J. Delaney, J., and Baldwin, J., concur. ___________________________________ HON. JOHN W. WISE
___________________________________ HON. PATRICIA A. DELANEY
___________________________________ HON. CRAIG R. BALDWIN
JWW/d 1009 Guernsey County, Case No. 13 CA 19 6
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: : JUDGMENT ENTRY : : K.S., W.O., and J.O. : Case No. 13 CA 19
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is
affirmed.
Costs assessed to appellant.
___________________________________ HON. JOHN W. WISE