Jordan v. Jordan

2015 Ohio 4261

• Court: Ohio Court of Appeals
• Decided: October 9, 2015
• Docket: 15 CAF 08 038
• Status: Published

Opinion

[Cite as Jordan v. Jordan, 2015-Ohio-4261.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

BARBARA L. JORDAN : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : JOAQUIN M. JORDAN : Case No. 15 CAF 08 038 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 09 DR-A-08-0381

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 9, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BARBARA L. JORDAN, pro se JOAQUIN M. JORDAN, pro se 44 Tabilore Loop 7137 Perry Road Delaware, OH 43015 Delaware, OH 43015 Delaware County, Case No. 15 CAF 08 038 2

Baldwin, J.

{¶1} Appellant Joaquin M. Jordan appeals a judgment of the Delaware County

Common Pleas Court finding him in contempt and ordering him to reimburse appellee

Barbara L. Jordan $3,184.11 by September 30, 2015.

STATEMENT OF FACTS AND CASE

{¶2} The parties were divorced on September 20, 2010. The parties have

three children, and were granted shared parenting. On October 7, 2013, appellant was

designated residential parent for one of the minor children, while the parties retained

shared parenting over the other minor child. The parties' third child was emancipated at

that time. An agreed order filed on this date also ordered appellant to pay the guardian

ad litem within 14 days of receiving the final bill. Appellant did not pay the bill as

required by this order.

{¶3} On August 13, 2013, appellant was ordered to pay appellee $3,184.11 for

various expenses of the children. Although a magistrate had ordered appellant to pay

$3,895.99 on June 20, 2013, appellant's objection to this amount was sustained, and

the court ordered appellant to pay a recalculated amount of $3,184.11. Appellant did

not appeal this order.

{¶4} Appellee sought to have appellant held in contempt of court for failing to

pay in accordance with the August 13, 2013 order. Appellant filed a motion seeking to

have appellee found in contempt for failing to make restitution for medical expenses he

incurred on behalf of the children. Delaware County, Case No. 15 CAF 08 038 3

{¶5} Following a hearing before a magistrate, the magistrate found that

appellant had failed to pay appellee $3,184.11 as previously ordered. The magistrate

noted that the court did not establish a deadline by which appellant was to pay appellee,

and therefore found he was not in contempt of court for failing to pay in accordance with

the August 13, 2013 order. The magistrate further found that appellant failed to submit

proof that he paid medical expenses for which he was not reimbursed by appellee, and

therefore recommended that his motion for contempt be overruled. Appellant was found

in contempt for failing to pay the guardian ad litem's fees.

{¶6} Appellant objected to the magistrate's report, claiming that the amount of

$3,184.11 was not properly calculated. Appellant also attempted to submit medical

receipts with his objections which he did not present at the hearing before the

magistrate.

{¶7} The court overruled appellant's objections. The court found that

appellant's claim of a calculation error in the August 13, 2013 order is res judicata

because he did not file an appeal from that order. The court ordered appellant to pay

$3,184.11 to appellee by September 30, 2015. The court further found that the

additional documents appellant submitted to the court in support of his claim that he

paid medical expenses that were not reimbursed were receipts, bills, and checks from

the year 2013. The court found that appellant did not demonstrate that he could not

have presented these documents at the June of 2014 hearing before the magistrate,

and the court therefore declined to consider this evidence pursuant to Civ. R.

53(D)(4)(d).

{¶8} Appellant assigns two errors on appeal: Delaware County, Case No. 15 CAF 08 038 4

{¶9} "I. THE COURT ORDER TO REIMBURSE THE PLAINTIFF FOR

EXPENSES OF $3,184.11 FROM THE SHARED PARENTING PLAN AGREEMENT

WAS CALCULATED INCORRECTLY AND SEVERAL ATTEMPTS HAVE BEEN MADE

TO CLARIFY THIS MATTER WITH THE COURT.

{¶10} "II. JUDGE GROMLEY'S [SIC] JUDGMENT ENTRY OVERRULED MY

OBJECTION TO MAGISTRATE CLINGER'S DECISION FOR REIMBURSEMENT OF

MEDICAL EXPENSES I INCURRED ON BEHALF OF THE CHILDREN."

I.

{¶11} In his first assignment of error, appellant argues that the calculation of

expenses of $3,184.11 in the August 13, 2013, judgment was improper.

{¶12} Appellant failed to file an appeal from the August 13, 2013 judgment.

Failure to file a timely appeal of a final, appealable order constitutes a waiver of the right

to appeal any errors contained within the order. In re Lefever, 5th Dist. Muskingum No.

CT2004-0005, 2004-Ohio-6857, ¶ 15, citing In re Appropriation for Juv. & Probate Div.

for 1979, 62 Ohio St.2d 99, 403 N.E.2d 974 (1980). Appellant is precluded from raising

his claim of error at this stage in the proceedings because he failed to timely appeal the

August 13, 2013 judgment in which he now claims error.

{¶13} The first assignment of error is overruled.

II.

{¶14} In his second assignment of error, appellant argues that the court erred in

overruling his objections to the magistrate's decision concerning medical expenses. He

argues that the evidence concerning insurance claims that were not processed in a Delaware County, Case No. 15 CAF 08 038 5

timely manner was not available to him at the time of the June 9, 2014 hearing, and he

submitted copies with cancelled checks and receipts with his objections.

{¶15} Civ. R. 53(D)(4)(d) provides that on objections to the magistrate's report,

"the court may hear additional evidence but may refuse to do so unless the objecting

party demonstrates that the party could not, with reasonable diligence, have produced

that evidence for consideration by the magistrate."

{¶16} The use of the word “may” indicates the court has discretion to decide

whether to hear additional evidence after the parties submit objections to the report.

State ex rel. Dann v. Coen, 5th Dist. Stark No. 2008CA00050, 2009-Ohio-4000, ¶ 40,

citing Normandy Place Assoc. v. Beyer, 2 Ohio St.3d 102, 105, 443 N.E.2d 161 (1982).

{¶17} As noted by the trial court, appellant attempted to submit evidence in the

form of receipts, bills, and checks from the year 2013 without offering an explanation to

the court as to why he could not have produced these documents at the hearing before

the magistrate in June of 2014. The trial court did not abuse its discretion in refusing to

hear additional evidence.

{¶18} The second assignment of error is overruled.

{¶19} The judgment of the Delaware County Common Pleas Court is affirmed.

Costs are assessed to appellant.

By: Baldwin, J.

Farmer, P.J. and

Delaney, J. concur.