Morningstar v. Burns

2013 Ohio 2631

• Court: Ohio Court of Appeals
• Decided: June 21, 2013
• Docket: 12-CA-106
• Status: Published

Opinion

[Cite as Morningstar v. Burns, 2013-Ohio-2631.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

CRYSTAL L. MORNINGSTAR, ET AL JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-106 RYAN P. BURNS

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 11-PA-41

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 21, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

CRYSTAL L. MORNINGSTAR, PRO SE JODELLE M. D’ARNICO 218 North Baker Ave 7110 E. Livingston Ave Lancaster, Ohio 43130 Reynoldsburg, Ohio 43068 Fairfield County, Case No. 12-CA-106 2

Hoffman, J.

{¶1} Plaintiff-appellant Crystal Morningstar appeals the September 4, 2012

Entry entered by the Fairfield County Court of Common Pleas, Domestic Relations

Division, which approved and adopted the magistrate’s September 4, 2012 Decision as

order of the court. Defendant-appellee is Ryan Patrick Burns.1

STATEMENT OF THE CASE

{¶2} Appellant and Appellee are the biological parents of T.M. (dob 11/21/02).

The parties have never been married. Appellant filed a Complaint to Determine

Parentage and Support on February 14, 2011. The trial court ordered Appellee and the

minor child undergo genetic testing. The test results indicated there was a 99.99%

probability Appellee was T.M.’s father. Via Judgment Entry filed June 13, 2011, the trial

court established a parent/child relationship between Appellee and his son, and ordered

Appellee pay $500/month in child support.

{¶3} The parties entered into an Agreed Judgment Entry on July 11, 2011.

Appellant was designated the sole residential parent and legal custodian of T.M.

Appellee was granted parenting time, using a phase-in schedule.

{¶4} On January 25, 2012, Appellant filed a Verified Multi Branch Motion,

seeking a modification of the child support award, including relief from the portion of the

June 13, 2011 Judgment Entry which prevented her from seeking or the trial court

awarding retroactive child support. On July 18, 2012, Appellee filed a motion to modify

parenting time, asserting a change of circumstances warranted the modification.

1 Appellee has not filed a Brief in this matter. Fairfield County, Case No. 12-CA-106 3

{¶5} The magistrate conducted a hearing on the issues of modification of child

support and modification of parenting time. Via Decision filed September 4, 2012, the

magistrate found a change of circumstances warranted an increase in Appellee’s

parenting time. The magistrate also found a change of circumstances warranted a

reduction in Appellee’s child support obligation. Via Entry filed September 4, 2012, the

trial court approved and adopted the magistrate’s decision. Neither party filed

objections to the magistrate’s decision.

{¶6} Via Judgment Entry filed September 21, 2012, the trial court denied the

portion of Appellant’s Verified Multi Branch Motion seeking relief from the June 13, 2011

Judgment Entry.

{¶7} It is from the September 4, 2012 Entry, approving and adopting the

Magistrate’s Decision Appellant appeals.

{¶8} We begin by noting Appellant has failed to comply with App. R. 16.

{¶9} App. R. 16(A) provides:

{¶10} “The appellant shall include in its brief, under the headings and in the

order indicated, all of the following:

{¶11} “(1) A table of contents, with page references.

{¶12} “(2) A table of cases alphabetically arranged, statutes, and other

authorities cited, with references to the pages of the brief where cited.

{¶13} “(3) A statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected.

{¶14} “(4) A statement of the issues presented for review, with references to the

assignments of error to which each issue relates. Fairfield County, Case No. 12-CA-106 4

{¶15} “(5) A statement of the case briefly describing the nature of the case, the

course of proceedings, and the disposition in the court below.

{¶16} “(6) A statement of the facts relevant to the assignments of error

presented for review, with appropriate references to the record * * *

{¶17} “(7) An argument containing the contentions of the appellant with respect

to each assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies. The argument may be preceded by a summary.

{¶18} “(8) A conclusion briefly stating the precise relief sought.”

{¶19} Appellant's brief does not satisfy the requirements of App. R. 16(A);

therefore, is noncompliant. Absent minimal compliance with App. R. 16(A), this Court

cannot reasonably respond to Appellant's claims, and may, in its discretion, disregard

those claims. See, Foster v. Board of Elections, 53 Ohio App.2d 213, 228, 373 N.E.2d

1274 (1977). Such deficiencies are tantamount to failure to file a brief. Although this

Court has the authority under App. R. 18(C) to dismiss an appeal for failure to file a

brief, we elect not to do so.

{¶20} Before addressing the merits of Appellant's appeal, we must discuss the

state of the record before this Court.

{¶21} Appellant failed to provide this Court with a transcript of the proceedings

before the magistrate.

{¶22} 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 Fairfield County, Case No. 12-CA-106 5

lower court's proceedings, and affirm. Knapp v. Edwards Lab., 61 Ohio St.2d 197, 400

N.E.2d 384 (1980). Because Appellant has failed to provide this Court with those

portions of the transcript necessary for resolution of this appeal, i.e., the transcript of the

February 28, 2008 hearing, we must presume the regularity of the proceedings below

and affirm, pursuant to the directive set forth above in Knapp, supra.

{¶23} Assuming, arguendo, a transcript of the proceeding before the magistrate

is not necessary for resolution of the appeal, we further note Appellant failed to object to

the magistrate's decision.

{¶24} Civ.R. 53(D)(3)(b)(iv) provides:

{¶25} “Except for a claim of plain error, a party shall not assign as error on

appeal the court's adoption of any factual finding or legal conclusion, whether or not

specifically designated as a finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Civ.R. 53(D)(3)(b).”

{¶26} Because Appellant failed to object to the magistrate's decision, we find

Appellant’s argument(s) to be waived. Fairfield County, Case No. 12-CA-106 6

{¶27} We affirm the judgment of the Fairfield County Court of Common Pleas,

Domestic Relations Division.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Fairfield County, Case No. 12-CA-106 7

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

CRYSTAL L. MORNINGSTAR, ET AL. : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : RYAN P. BURNS : : Defendant-Appellee : Case No. 12-CA-106

For the reasons stated in our accompanying Opinion, we affirm the judgment of

the Fairfield County Court of Common Pleas, Domestic Relations Division. Costs to

Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin_____________________ W. SCOTT GWIN

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER