Mayer v. Scyphers

2014 Ohio 2200

• Court: Ohio Court of Appeals
• Decided: May 19, 2014
• Docket: 13CA0009
• Status: Published

Opinion

[Cite as Mayer v. Scyphers, 2014-Ohio-2200.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

FRANK R. MAYER II : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13CA0009 : DEANNE M. SCYPHERS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of Common Pleas, Juvenile Division Case No. 2012 JUCST 00085

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 19, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

TOM C. ELKIN JOHN C. FILKINS P.O. Box 189 101 W. Sandusky St., Suite 204 Mt. Gilead, OH 43338 Findlay, OH 45840 Morrow County, Case No. 13CA0009 2

Delaney, J.

{¶1} Appellant Deanne M. Scyphers (“Mother”) appeals from the October 21,

2013 judgment entry of the Morrow County Court of Common Pleas, Domestic

Relations Division. Appellee is Frank R. Mayer II (“Father”).

FACTS AND PROCEDURAL HISTORY

{¶2} On April 18, 2012, Father filed a complaint to establish parental rights and

responsibilities of A.C.S., born December 23, 2011. Paternity was established through

the Morrow County Child Support Enforcement Agency. Father sought designation as

residential and custodial parent of A.C.S.

{¶3} The matter proceeded to final hearing before the magistrate on May 21,

2013. On July 15, 2013, the magistrate issued Findings of Fact and Conclusions of Law

which Mother objected to on July 29, 2013, challenging, e.g., the magistrate’s allocation

of visitation to Father and the recommendation that guardian ad litem fees should be

split equally.

{¶4} On October 18 and October 21, 2013, the trial court overruled Mother’s

objections because no transcript was ordered of the proceedings.

{¶5} Mother now appeals from the trial court’s Journal Entry of October 21,

2013.

{¶6} Mother raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶7} “I. THE TRIAL COURT ERRED AS A RESULT OF ITS GRANTING TO

THE APPELLEE PARENTING TIME IN EXCESS OF ALTERNATE WEEKENDS AND Morrow County, Case No. 13CA0009 3

IN EXCESS OF THE TRIAL COURT’S LOCAL RULE FOR SAME IS NOT IN THE

BEST INTEREST OF THE MINOR CHILD.”

{¶8} “II. THE TRIAL COURT ERRED IN ORDERING THE EQUAL DIVISION

OF GUARDIAN AD LITEM FEES BASED UPON THE FACT THAT APPELLEE

REQUESTED THE APPOINTMENT OF THE GUARDIAN AND THE APPELLEE

EARNS $52,000.00 A YEAR AND THE APPELLANT HAS IMPUTED INCOME OF

$16,000.00 A YEAR.”

ANALYSIS

I., II.

{¶9} Mother challenges the trial court’s decision to grant Father Visitation in

excess of alternate weekends and in excess of Local Rule 2, asserting its decision is

not in the best interest of the child, and argues the trial court should not have assessed

half the guardian ad litem fee against Mother. Mother has not provided a transcript of

the proceedings below, however, and we have no alternative but to affirm.

{¶10} In reviewing assigned error on appeal we are confined to the record

before the trial court as defined in App.R. 9(A). This rule provides that the record on

appeal consists of “[t]he original papers and exhibits thereto filed in the trial court, the

transcript of proceedings, if any, including exhibits, and a certified copy of the docket

and journal entries prepared by the clerk of the trial court.” The trial court in the instant

case noted no transcript was provided with objections to the magistrate’s decision.

{¶11} App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing Morrow County, Case No. 13CA0009 4

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.”

{¶12} In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The

duty to provide a transcript for appellate review falls upon the appellant. This is

necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). In this case,

Mother makes reference only to the magistrate’s decision, not to the record.

{¶13} Appellant has not provided a transcript of the final hearing which began on

May 21, 2013. Without a transcript, we must presume the regularity of the trial court’s

proceeding. Rachel v. Rachel, 5th Dist. Stark No. 2012CA00243, 2013-Ohio-3692, ¶

23, appeal not allowed, 137 Ohio St.3d 1473, 2014-Ohio-176, 2 N.E.3d 268, citing

Knapp, supra.

{¶14} Mother’s two assignments of error are overruled. Morrow County, Case No. 13CA0009 5

CONCLUSION

{¶15} The two assignments of error are overruled and the judgment of the

Morrow County Court of Common Pleas, Juvenile Division is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur. Morrow County, Case No. 13CA0009 6

Hoffman, P.J., concurring

{¶16} I fully concur in the majority's analysis and disposition of Appellant's first

assignment of error.

{¶17} I further concur in the majority's disposition of Appellant's second

assignment of error. However, I do not believe a transcript of the May 21, 2013 hearing

is necessary for our resolution of this assigned error. Nevertheless, I concur in

overruling it as I find no abuse of discretion by the trial court's ordering the guardian ad

litem fee split equally between the parties.