Mizer v. Mizer

2014 Ohio 4488

• Court: Ohio Court of Appeals
• Decided: October 8, 2014
• Docket: 2014CA0008
• Status: Published

Opinion

[Cite as Mizer v. Mizer, 2014-Ohio-4488.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

JULIE C. MIZER : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : JOSEPH E. MIZER : Case No. 2014CA0008 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 20640178

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 8, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT A. SKELTON BRIAN W. BENBOW 309 Main Street 605 Market Street Coshocton, OH 43812 Zanesville, OH 43701 Coshocton County, Case No. 2014CA0008 2

Farmer, P.J.

{¶1} On January 1, 2003, appellant, Joseph Mizer, and appellee, Julie Mizer,

were married. One child was born as issue of the marriage, Jared born September 10,

2004. On June 16, 2006, the Child Support Enforcement Agency (hereinafter "CSEA")

filed a complaint to establish child support in the Juvenile Division of the Court of

Common Pleas for Coshocton County. On July 3, 2006, appellee filed a complaint for

custody, also in the Juvenile Division. By consent judgment filed August 8, 2006,

appellee was named the residential parent and legal custodian of the child and child

support was ordered.

{¶2} On September 29, 2006, appellee filed a complaint for divorce in the

General Division (Case No. 2006DV0712).

{¶3} On June 4, 2007, appellee filed a motion in the Juvenile Division to

transfer jurisdiction of the Juvenile Division case to the General Division because of the

pending divorce complaint. By judgment entry filed June 11, 2007, the trial court denied

the motion.

{¶4} On April 16, 2007, the divorce complaint was amended to a dissolution

petition. A shared parenting plan was filed on April 17, 2007. On June 4, 2007, the

dissolution petition was converted back to a divorce complaint. A final decree of divorce

was issued on October 31, 2007. Following the divorce, the parties moved separately

to Licking County, Ohio.

{¶5} On April 17, 2013, appellant filed a motion in the General Division to

terminate the shared parenting plan, and sought re-designation of residential parent.

On May 7, 2013, appellee filed the same motion. Coshocton County, Case No. 2014CA0008 3

{¶6} On April 19, 2013, appellant filed a motion in the Juvenile Division to

modify child support.

{¶7} On June 13, 2013, appellant filed a motion in the General Division to

transfer jurisdiction of the Juvenile Division case to the General Division. By judgment

entry filed June 18, 2013, the trial court denied the motion.

{¶8} On June 17, 2013, appellant filed a motion in the Juvenile Division to

transfer jurisdiction of the Juvenile Division case to the General Division. By judgment

entry filed June 18, 2013, the trial court denied the motion.

{¶9} On June 24, 2013, appellant filed a shared parenting plan in the Juvenile

Division, contemporaneously with a motion to terminate the previous shared parenting

plan, and sought re-designation of residential parent.

{¶10} On July 10, 2013, the parties dismissed all pending motions in the General

Division.

{¶11} On July 17, 2013, appellee filed a motion in the Juvenile Division to

increase child support.

{¶12} Hearings before a Juvenile Division magistrate were held on October 15,

and December 10, 2013. By decision filed January 31, 2014, the magistrate named

appellee residential parent, denied shared parenting, and increased child support. Both

parties filed objections. By judgment entry filed March 11, 2014, the trial court denied

the objections, save for the issue of parenting time which both parties had objected to,

made specific modifications to the parenting time schedule, and adopted the

magistrate's decision. Coshocton County, Case No. 2014CA0008 4

{¶13} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶14} "THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO

HEAR THIS MATTER HEREIN, AS THE COSHOCTON COUNTY COMMON PLEAS

COURT, JUVENILE DIVISION, FIRST EXERCISED JURISDICTION OVER A CHILD

SUPPORT MATTER, WHICH DID NOT GIVE THE JUVENILE DIVISION EXCLUSIVE

JURISDICTION OVER THE PARTIES FROM THAT DATE FORWARD AS TO ALL

ISSUES. THE TRIAL COURT HAD NO AUTHORITY TO TERMINATE THE PARTIES'

SHARED PARENTING PLAN ISSUED BY THE COSHOCTON COUNTY COMMON

PLEAS COURT, GENERAL DIVISION, PURSUANT TO A LATER DIVORCE. THE

ORDERS ISSUED BY THE TRIAL COURT ARE ACCORDINGLY VOID."

II

{¶15} "THE TRIAL COURT ERRED BY HEARING THIS MATTER WHEN

NEITHER PARTY RESIDED IN COSHOCTON COUNTY; BOTH PARTIES

CONTINUOUSLY RESIDED IN LICKING FOR A SUBSTANTIAL AMOUNT OF TIME

PRIOR TO MATTERS THAT WERE BEFORE THE TRIAL COURT."

III

{¶16} "THE TRIAL COURT ERRED BY RULING UPON APPELLANT'S

OBJECTIONS WITHOUT REVIEWING THE TRANSCRIPT, USING ALTERNATIVE

TECHNOLOGY TO REVIEW THE RECORD BEFORE THE MAGISTRATE, OR

PROVIDING APPELLANT WITH THE AUDIO RECORDINGS REQUESTED

PURSUANT TO A FEBRUARY 6, 2014 WRITTEN MOTION." Coshocton County, Case No. 2014CA0008 5

IV

{¶17} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S

OBJECTIONS TO THE MAGISTRATE'S DECISION THAT REFUSED TO ADOPT THE

APPELLANT'S PROPOSED SHARED PARENTING PLAN, A PLAN IN PLACE BY THE

PARTIES FOR MANY YEARS PREVIOUSLY BUT A PLAN THAT THE TRIAL COURT

REFUSED TO RECOGNIZE.

{¶18} "THE TRIAL COURT FURTHER ERRED BY ADOPTING THE

MAGISTRATE'S DECISION, WHICH NAMED APPELLEE AS THE RESIDENTIAL

PARENT OF THE PARTIES' MINOR CHILD, THE MAGISTRATE FOUND THAT THE

APPELLEE WAS THE SOURCE OF ANY ALLEGED NON-COOPERATION AND THAT

SUCH ALLEGED PROBLEMS WERE NOT JOINT IN NATURE. THE TRIAL COURT

ACCORDINGLY ERRED BY REWARDING APPELLEE'S BAD BEHAVIOR IN

UNILATERALLY REFUSING TO COOPERATE WITH APPELLANT IN AN ATTEMPT

TO GAIN A TACTICAL LITIGATION ADVANTAGE CONTRARY TO THE BEST

INTEREST OF THE CHILD AND CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE."

V

{¶19} "THE TRIAL COURT ERRED BY ADOPTING THE MAGISTRATE'S

DECISION THAT ERRED BY NOT DEVIATING CHILD SUPPORT TO ZERO AND BY

IGNORING FACTORS CONTAINED IN THE DEVIATION STATUTE.

{¶20} "THE TRIAL COURT FURTHER ERRED IN ADOPTING THE

MAGISTRATE'S DECISION THAT ALLOCATED UNINSURED MEDICAL EXPENSES Coshocton County, Case No. 2014CA0008 6

90% TO APPELLANT AND 10% TO APPELLEE WHEN APPELLEE'S HOUSEHOLD

INCOME GREATLY EXCEEDS THAT OF APPELLANT.

{¶21} "THE TRIAL COURT FURTHER ERRED IN ADOPTING THE

MAGISTRATE'S DECISION THAT FAILED TO MAKE THE CHILD SUPPORT

MODIFICATION RETROACTIVE TO THE DATE IT WAS FIRST REQUESTED IN

WRITING WITH THE TRIAL COURT."

{¶22} Appellant claims the trial court lacked subject matter jurisdiction to hear

the matter herein. We disagree.

{¶23} Appellant argues the trial court erred in exercising exclusive jurisdiction on

child support and custody matters when the divorce was granted by the General

{¶24} The pivotal issue is the timing of the jurisdiction invoked by the parties. It

is undisputed that the first filing was a complaint in the Juvenile Division by the CSEA to

establish child support on June 16, 2006. On July 3, 2006, appellee filed a complaint

for custody, also in the Juvenile Division. By a consent judgment filed August 8, 2006,

appellee was named the residential parent and legal custodian of the child and child

{¶25} On September 29, 2006, appellee filed a complaint for divorce in the

General Division. The General Division issued a temporary support order on October 2,

2006.

{¶26} On June 4, 2007, appellee filed a motion in the Juvenile Division to

transfer jurisdiction of the Juvenile Division case to the General Division because of the Coshocton County, Case No. 2014CA0008 7

pending divorce complaint. By judgment entry filed June 11, 2007, the trial court denied

{¶27} On October 31, 2007, the General Division issued a final decree of divorce

which included a child support order and a shared parenting plan. No appeal was

taken.

{¶28} On July 13, 2009, the Juvenile Division modified the child support order

upon CSEA's motion. The judgment entry specifically states "neither party has filed

objections to that request." Appellant is listed as obligor and appellee is listed as

obligee. No appeal was taken on the issue of jurisdiction.

{¶29} On April 19, 2013, appellant filed a motion in the Juvenile Division to

{¶30} On June 13, 2013, appellant filed a motion in the General Division to

transfer jurisdiction of the Juvenile Division case to the General Division. By judgment

entry filed June 18, 2013, the trial court denied the motion.

{¶31} On June 17, 2013, appellant filed a motion in the Juvenile Division to

transfer jurisdiction of the Juvenile Division case to the General Division. By judgment

entry filed June 18, 2013, the trial court denied the motion.

{¶32} On June 24, 2013, appellant filed a shared parenting plan in the Juvenile

Division, contemporaneously with a motion to terminate the previous shared parenting

{¶33} On July 10, 2013, the parties dismissed all pending motions in the General

Division, and the General Division relinquished jurisdiction to the Juvenile Division. No

appeal was taken on the relinquishment of jurisdiction. Coshocton County, Case No. 2014CA0008 8

{¶34} R.C. 2153.23 governs jurisdiction of juvenile court. Subsection (A)(11)

states the following:

(A) The juvenile court has exclusive original jurisdiction under the

Revised Code as follows:

(11) Subject to divisions (G), (K), and (V) of section 2301.03 of the

Revised Code, to hear and determine a request for an order for the

support of any child if the request is not ancillary to an action for divorce,

dissolution of marriage, annulment, or legal separation, a criminal or civil

action involving an allegation of domestic violence, or an action for support

brought under Chapter 3115. of the Revised Code[.]

{¶35} In discussing the jurisdiction of the juvenile court relative to the Uniform

Interstate Family Support Act (hereinafter "UIFSA"), the Supreme Court of Ohio in Pula

v. Pula-Branch, 129 Ohio St.3d 196, 2011-Ohio-2896, ¶ 8, reaffirmed the meaning of

R.C. 2151.23(A)(11) as follows:

Indeed, cases brought pursuant to R.C. Chapter 3115 are explicitly

excluded from the juvenile court's exclusive jurisdiction. R.C.

2151.23(A)(11) grants exclusive jurisdiction to juvenile courts to "hear and

determine a request for an order for the support of any child if the request

is not ancillary to an action for divorce, dissolution of marriage, annulment,

or legal separation,***or an action for support brought under Chapter Coshocton County, Case No. 2014CA0008 9

3115. of the Revised Code." (Emphasis added.) Thus, if the sought-after

support order arises in a domestic relations case or an R.C. Chapter 3115

case, the juvenile court does not have exclusive jurisdiction over support

orders. Since juvenile courts do not have exclusive jurisdiction under R.C.

Chapter 3115 claims, other courts may hear those cases.

{¶36} Under R.C. 2151.23(A)(2), a juvenile court has exclusive jurisdiction to

"determine the custody of any child not a ward of another court of this state." The

Juvenile Division was first to exercise jurisdiction on child support and custody and

continually exercised that jurisdiction unchallenged by the parties. The trial court's

assumption of jurisdiction under R.C. 2151.23(A)(2) was continuing.

{¶37} Upon review, we find the trial court had subject matter jurisdiction to hear

the matter.

{¶38} Assignment of Error I is denied.

{¶39} Appellant claims the matter should have been tried in Licking County as

both parties resided in said county. We disagree.

{¶40} An original custody complaint was filed in the Juvenile Division of the

Court of Common Pleas for Coshocton County on July 3, 2006. In his motion filed June

24, 2013 relative to a shared parenting plan and re-designation of residential parent,

appellant sought the jurisdiction of the Coshocton Juvenile Division and never

suggested to said court the residence of either party or the location of the child.

Appellee also never informed the court in her various motions. The record does not Coshocton County, Case No. 2014CA0008 10

contain a formal transfer request to Licking County. Since a transcript has not been

provided, we are unable to determine if any objection or notice was given to the trial

court. In her objections to the magistrate's decision, appellee argued the lack of a

custody affidavit required under the UCCJA. In its judgment entry filed March 11, 2014,

the trial court denied the objection, stating the following:

The Court notes that such an affidavit was filed previously on July

3, 2006. The parties were aware of potential jurisdictional challenges

when the Father moved to transfer the matter to the General Division of

the Court, which was denied. The parties ligated (sic) the case, including,

presenting detailed information regarding where and with whom the child

had been living. Essentially, the statute's requirements were substantially

satisfied and no prejudice resulted.

{¶41} No appeal was taken from this determination.

{¶42} Assignment of Error II is denied.

{¶43} Appellant claims the trial court erred in ruling on the objections without

providing him with the audio recordings requested via motion filed February 6, 2014.

We disagree.

{¶44} Civ.R. 53(D)(3)(b)(iii) states the following: Coshocton County, Case No. 2014CA0008 11

(iii) Objection to magistrate's factual finding; transcript or affidavit.

An objection to a factual finding, whether or not specifically designated as

a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a

transcript of all the evidence submitted to the magistrate relevant to that

finding or an affidavit of that evidence if a transcript is not available. With

leave of court, alternative technology or manner of reviewing the relevant

evidence may be considered. The objecting party shall file the transcript

or affidavit with the court within thirty days after filing objections unless the

court extends the time in writing for preparation of the transcript or other

good cause. If a party files timely objections prior to the date on which a

transcript is prepared, the party may seek leave of court to supplement the

objections.

{¶45} We note the rule gives the trial court discretion to allow the use of

alternative means instead of a written transcript. In order to find an abuse of discretion,

we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

{¶46} In its judgment entry filed March 11, 2014, the trial court noted the

objections were reviewed, and found "no error of law or other defect on the face of the

Magistrate's Decision" regarding the objections, save for the objections on the parenting

time order which was appellant's Objection No. 4 and appellee's Objection No. 1.

Appellant's Objection Nos. 1, 2, 5, and 7 were issues of law that did not involve a Coshocton County, Case No. 2014CA0008 12

disputed issue of fact necessitating a transcript. Objection Nos. 3 and 6 centered on the

denial of shared parenting and the designation of residential parent, and argued a

deviation to zero for child support based on parenting time.

{¶47} The trial court's ruling on March 11, 2014 was filed over thirty days from

appellant's objections and request for the audio recordings, both filed on February 6,

2014. Appellant's objections included a request "to supplement his Objections once a

transcript of the proceedings is filed with this Court." Appellant never filed a request for

an extension to have the transcript prepared.

{¶48} Based on the conflicting request, we find the trial court did not err or abuse

its discretion in ruling as it did.

{¶49} Assignment of Error III is denied.

IV, V

{¶50} Appellant claims the trial court erred in failing to adopt his shared

parenting plan, naming appellee as the residential parent, failing to deviate child support

to zero, allocating uninsured medical expenses, and failing to make the child support

modification retroactive to the date it was first requested. We disagree.

{¶51} Appellant failed to present this court with a transcript of the hearing. In

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980), the Supreme Court of

Ohio held the following:

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. See State v. Coshocton County, Case No. 2014CA0008 13

Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized in App.R.

9(B), which provides, in part, that '***the appellant shall in writing order

from the reporter a complete transcript or a transcript of such parts of the

proceedings not already on file as he deems necessary for inclusion in the

record.***.' 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. (Footnote omitted.)

{¶52} This rule of law pertains to all of the claimed errors except the retroactive

date of the child support modification. The start date to use for the modification of child

support is left to the discretion of the trial court. Wright v. Reck, 2nd Dist. Miami No.

2001-CA-30, 2001-Ohio-1706; Blakemore, supra.

{¶53} On April 19, 2013, appellant filed a motion to modify child support. On

June 24, 2013, appellant filed a shared parenting plan and requested a designation of

him as residential parent. On July 17, 2013, appellee filed a motion to increase child

support. Hearings were held before the magistrate on October 15, and December 10,

2013. In her decision filed January 31, 2014, the magistrate recommended a reduction

in appellant's child support obligation. The recommendation was not made retroactive.

{¶54} We note the parenting schedule and residential parent designation

remained the same from April 19, 2013 to January 31, 2014. Upon review, we find no Coshocton County, Case No. 2014CA0008 14

abuse of discretion in ordering a decrease in child support forward from the date of the

decision.

{¶55} Assignments of Error IV and V are denied.

{¶56} The judgment of the Court of Common Pleas of Coshocton County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.

SGF/sg 902