Nester v. Nester

2014 Ohio 1759

• Court: Ohio Court of Appeals
• Decided: April 24, 2014
• Docket: 13 CA 56
• Status: Published

Opinion

[Cite as Nester v. Nester, 2014-Ohio-1759.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

SANDRA NESTER JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13 CA 56 DORAN NESTER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 11 DR 438

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 24, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRIAN HERZBERGER DORAN NESTER 2691 East Main Street PRO SE Suite 102A 61 Carroll Eastern Road NW Columbus, Ohio 43209 Baltimore, Ohio 43105 Fairfield County, Case No. 13 CA 56 2

Wise, J.

{¶1}. Appellant Doran Nester appeals the decision of the Fairfield County Court

of Common Pleas, Domestic Relations Division, which granted Appellee Sandra

Nester's complaint for divorce. The relevant facts leading to this appeal are as follows.

{¶2}. Appellant Doran and Appellee Sandra were married in Fairfield County,

Ohio, in October 1966. On August 12, 2011, appellee filed a complaint for divorce in the

trial court. Appellant filed an answer on December 2, 2011.

{¶3}. The matter came before the trial court magistrate for final hearing on

October 23, 2012. The magistrate issued a written decision on April 19, 2013,

recommending the granting of a divorce and addressing the various financial issues,

noting that at the time of the decision, appellant was 77 years old and appellee was 68

years old. On May 8, 2013, appellant filed a pro se notice of appeal, which became

case number 13CA38 before this Court.1 However, we dismissed said appeal on July

19, 2013, for want of prosecution.

{¶4}. Thereafter, via a final judgment entry/decree issued by the trial court July

24, 2013, the parties were granted a divorce. Among other things, the trial court ordered

the marital residence sold, with the proceeds to be divided equally, and awarded

appellee spousal support in the amount of $312.50 per month.

{¶5}. On August 8, 2013, appellant filed a pro se notice of appeal. His brief was

filed on September 4, 2013. Appellee did not file a response brief, although she filed a

motion to dismiss the appeal, which we denied on March 26, 2014.

1 Despite appellant's attempt to appeal at that point, the record indicates that no objections to the magistrate's decision were ever filed by either party. Fairfield County, Case No. 13 CA 56 3

{¶6}. Appellant has not set forth any specific assigned errors. However, we find

contained in the text of his handwritten brief the following claims:

{¶7}. “I. DEFENDANT CANNOT ABIDE BY [THE TRIAL COURT'S] DECISION

THAT HE PAY SPOUSAL SUPPORT OF $312.50 PER MONTH PLUS PAY

PLAINTIFF'S ATTORNEY $500.00 OF HER FEES.

{¶8}. “II. THE AMOUNT [OF CREDIT CARD DEBT] SHOULD BE $5,420.00 ÷

2 = $2,710.00 AND NOT THE $2,109.50 LISTED BY [THE TRIAL COURT].

{¶9}. “III. BECAUSE OF ALL THE SACRIFICES THAT DEFENDANT HAS

MADE SINCE JUNE, 2007, HE HAS PAID $42,904.00 MORTGAGE PRINCIPAL,

$6,173.00 PROPERTY TAXES AND $5,837.00 INSURANCE AND FEELS HE

SHOULD BE ABLE TO RECOVER A PORTION OF THOSE AMOUNTS SINCE THEY

WERE MARITAL DEBTS.”

I., II., III.

{¶10}. As previously indicated herein, appellant did not properly object to the

magistrate's decision. Civ.R. 53(D)(3)(b)(iv) provides that “ * * * [a] party shall not assign

as error on appeal the court's adoption of any factual findings or legal conclusion * * *

unless the party has objected to that finding or conclusion * * *.” See, e.g., Stamatakis v.

Robinson, 5th Dist Stark No. 96CA303, 1997 WL 115878. We nonetheless recognize

that an appellant's failure to specifically object to a magistrate's decision does not bar

appellate review of “plain error.” See, e.g., Tormaschy v. Weiss, 5th Dist. Richland No.

00 CA 01, 2000 WL 968685, citing R.G. Real Estate Holding, Inc. v. Wagner, 2nd Dist.

Montgomery No. 16737, 1998 WL 199628. However, even under a plain error standard,

our review is effectively impeded because, although the record includes several Fairfield County, Case No. 13 CA 56 4

financial statement exhibits, appellant has failed to provide this Court with a written

transcript of the trial to the magistrate. Pursuant to App.R. 9(B)(1), “[i]t is the obligation

of the appellant to ensure that the proceedings the appellant considers necessary for

inclusion in the record, however those proceedings were recorded, are transcribed in a

form that meets the specifications of App.R. 9(B)(6).” In such a situation, we generally

must presume the regularity of the proceedings below and affirm. See, e.g., State v.

Myers, 5th Dist. Richland No. 2003CA0062, 2004–Ohio–3715, ¶ 14, citing Knapp v.

Edwards Laboratories. (1980), 61 Ohio St.2d 197, 400 N.E.2d 384.

{¶11}. This Court is cognizant that appellant is proceeding pro se, and, according

to his brief, suffers from a number of physical ailments, including COPD, hearing loss,

and arthritis. However, “[w]hile insuring that pro se appellants * * * are afforded the

same protections and rights prescribed in the appellate rules, we likewise hold them to

the obligations contained therein.” State v. Wayt, 5th Dist. Tuscarawas No.

90AP070045, 1991 WL 43005.

{¶12}. Appellant's aforementioned Assignments of Error are therefore overruled. Fairfield County, Case No. 13 CA 56 5

{¶13}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Fairfield County, Ohio, is hereby

affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/d 0403 Fairfield County, Case No. 13 CA 56 6