Kandel v. Kandel

2011 Ohio 3031

Opinion

[Cite as Kandel v. Kandel, 2011-Ohio-3031.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: ANNE M. KANDEL : Sheila G. Farmer, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 10AP100039 : : BRUCE E. KANDEL, et al. : OPINION

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas, Domestic Relations Division, Case No. 2008TC020095

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 14, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

PAUL HERVEY MICHAEL C. JOHNSON P.O. Box 1014 P.O. Box 1007 New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

ROBERT H. CYPERSKI 1201 30th Street, N.W., 102B Canton, Ohio 44709 [Cite as Kandel v. Kandel, 2011-Ohio-3031.]

Edwards, J.

{¶1} Appellant, Bruce E. Kandel, appeals a judgment of the Tuscarawas

County Common Pleas Court awarding appellee Anne Kandel a divorce on the grounds

of adultery and incompatibility, dividing marital property and naming appellee the

residential parent of the children.

STATEMENT OF FACTS AND CASE

{¶2} The parties were married on April 6, 2001. The marriage was appellee’s

first and appellant’s third. They met when appellee was 17 years old and began

working at the trucking company where appellant worked. They have twin daughters

born prematurely on May 3, 2007, who have experienced medical and developmental

problems.

{¶3} Appellee filed the instant complaint for divorce on February 27, 2008. The

case proceeded to trial before a magistrate in December, 2008, and April, 2009.

Following the hearing, the magistrate found that appellant did not have an ownership

interest in Beller-VonKaenel Trucking, but was an employee of the company. The

magistrate further recommended that appellee be named the residential parent of the

children.

{¶4} Both parties filed objections to the magistrate’s report. The trial court

found that appellant did have an ownership interest in Beller-VonKaenal trucking, but

that such ownership interest arose during the marriage, rendering the company marital

property. The court named appellee the residential parent of the children.

{¶5} Appellant assigns six errors on appeal: Tuscarawas County App. Case No. 10AP100039 3

{¶6} “I. THE TRIAL COURT DECISION THAT OWNERSHIP OF BELLER-

VONKAENEL TRUCKING, OHIO CARRIER, OHIO BROKERAGE AND STRASBURG

LEASING WERE DEEMED TO BE MARITAL PROPERTY IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶7} “II. THE TRIAL COURT COMMITTED ERROR IN DETERMINING THAT

DEFENDANT-APPELLANT BRUCE KANDEL’S BUSINESS REAL ESTATE WAS

ACQUIRED DURING THE MARRIAGE AND THAT THE VALUE WAS SIX HUNDRED

THOUSAND DOLLARS ($600,000.00) FOR WHICH THREE HUNDRED THOUSAND

DOLLARS ($300,000.00) WAS ORDERED TO BE PAID TO ANNE KANDEL. THIS

ORDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND AN ABUSE

OF DISCRETION.

{¶8} “III. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO

BRUCE KANDEL IN ITS DETERMINATION THAT BRUCE KANDEL FAILED TO MEET

THE BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE TO

ESTABLISH THAT THE COMPANIES AND THE REAL ESTATES ARE HIS

SEPARATE PROPERTY.

{¶9} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING

ANNE KANDEL AS THE SOLE RESIDENTIAL PARENT TO BRUCE KANDEL AND

ANNE KANDEL’S TWIN DAUGHTERS, AS THIS IS NOT IN THE BEST INTERESTS

OF THE CHILDREN.

{¶10} “V. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING

ANNE KANDEL AS THE SOLE RESIDENTIAL PARENT WHILE NOT CONSIDERING

A SHARED PARENTING PLAN BETWEEN BRUCE KANDEL AND ANNE KANDEL. Tuscarawas County App. Case No. 10AP100039 4

{¶11} “VI. BASED UPON THE DEVISION (SIC) OF ASSETS AND PAYMENTS

ORDERED TO BE MADE BY APPELLANT, THE ORDER TO PAY ATTORNEY FEES

WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

{¶12} All of appellant’s assignments of error argue that the judge’s decision is an

abuse of discretion because it’s not supported by the evidence or is against the

manifest weight of the evidence. Appellee notes in her brief that appellant failed to

provide this court with a transcript of the April 24, 2009, hearing before the magistrate

and the April 26, 2010, hearing before the trial court on objections to the magistrate’s

decision.

{¶13} It appears from the trial court’s judgment that the April 26, 2010, objection

hearing was not a hearing at which the court heard additional evidence. However, the

April 24, 2009, hearing was the final day of trial before the magistrate. The transcript

from April 23, 2009, reflects that the court anticipated a few more hours of trial because

there would be redirect examination of appellant, who was on the witness stand at the

end of the day on April 23, 2009, and counsel had indicated that there would be

rebuttal. Tr. 179.

{¶14} The trial court’s judgment recites at the outset that the court reviewed the

record including transcripts of the hearing before the magistrate on 12/20/2008,

4/14/2009, 4/15/2009, 4/16/2009, 4/17/2009, 4/21/2009, and 4/23/2009. The judge

noted that he reviewed the recording of the 4/24/2009 hearing before the magistrate.

The court’s footnote states, “The parties did not request a Transcript of the 4/24/2009

hearing before the Magistrate; however, Civ. R. 53(D)(3)(b)(iii) permits the Court to use Tuscarawas County App. Case No. 10AP100039 5

alternative technology to review and consider relevant evidence.” Judgment Entry,

September 2, 2010, page 3.

{¶15} Appellant, therefore, was on notice that he had failed to request a

transcript of the April 24, 2009, hearing. While on the docketing statement appellant

indicates that a full transcript would be provided, appellant did not order a transcript of

the April 24, 2009, hearing as required by App. R. 9(B). The notice of filing of the record

sent by the clerk of courts to all counsel of record specifically states, “There were no

additional transcripts filed in this case.”

{¶16} This Court, therefore, does not have a complete record of all the evidence

as presented to the magistrate and reviewed by the trial court judge. The duty to

provide a transcript for appellate review falls upon the appellant. Knapp v. Edwards

Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384. When portions of the

transcript necessary for resolution of assigned errors are omitted from the record, the

reviewing court has nothing to pass upon and thus, as to those assigned errors, the

court has no choice but to presume the validity of the lower court's proceedings, and

affirm. Id. Tuscarawas County App. Case No. 10AP100039 6

{¶17} Appellant’s first, second, third, fourth, fifth and sixth assignments of error

are overruled.

{¶18} The judgment of the Tuscarawas County Court of Common Pleas,

Domestic Relations Division, is affirmed.

By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

______________________________

JUDGES

JAE/r0304 [Cite as Kandel v. Kandel, 2011-Ohio-3031.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ANNE M. KANDEL : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : BRUCE E. KANDEL, et al., : : Defendants-Appellants : CASE NO. 10AP100039

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas, Domestic Relations

Division, is affirmed. Costs assessed to appellant.

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