Owensby v. Owensby

2023 Ohio 4824

• Court: Ohio Court of Appeals
• Decided: December 29, 2023
• Docket: 29815
• Status: Published

Opinion

[Cite as Owensby v. Owensby, 2023-Ohio-4824.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

DEBORAH D. OWENSBY (TISDALE) : : Appellant : C.A. No. 29815 : v. : Trial Court Case No. 2016 DR 00886 : DWANN L. OWENSBY SR. : (Appeal from Common Pleas Court- : Domestic Relations) Appellee : :

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OPINION

Rendered on December 29, 2023

DEBORAH D. OWENSBY (TISDALE), Appellant, Pro Se

DWANN L. OWENSBY, SR., Appellee, Pro Se

.............

WELBAUM, P.J.

{¶ 1} Appellant, Deborah Owensby (Tisdale) (“Deborah”) appeals from a judgment

granting Appellee, Dwann Owensby (“Dwann”) one of four tax exemptions for the parties’

children. Deborah’s brief failed to comply with any of the requirements in App.R. 16(A).

However, she appears to assert that the trial court erred in granting one tax exemption to -2-

Dwann, who is the child support obligor for the parties’ four children.

{¶ 2} Deborah failed to file a transcript in the trial court when she objected to the

magistrate’s decision. The trial court, therefore, was limited to the facts in the decision.

Our review is similarly limited in that we can only consider whether the trial correctly

applied the law to the facts set forth in the magistrate’s decision. For the reasons

discussed below, we find that the trial court did not incorrectly apply the law. Accordingly,

the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} Deborah and Dwann were married in September 2010, and three children

were born as their issue and acknowledged as such: D.O., D.L.O., and N.O. (born,

respectively, in 2008, 2012, and 2013). In the March 2017 final judgment and decree of

divorce, the court ordered that Deborah would be the residential parent and legal

custodian of the children, Dwann would have reasonable parenting time, and Dwann

would pay $155 per child per month as child support, plus a two-percent processing

charge. An additional amount ($36.67) was added as cash medical support because

private health insurance was not being provided at the time. The decree further stated

that Deborah would be allowed to claim the three children as exemptions for purposes of

federal and state taxes. Neither party appealed from the judgment.

{¶ 4} In February 2022, Deborah filed a motion seeking to change the parenting

time, and a hearing was set for April 5, 2022. The Montgomery County Child Support

Enforcement Agency (“SEA”) then entered the action and filed a motion to establish and -3-

modify existing child support. The reason was that another child (N.D.O.) had been

conceived during the parties’ marriage but had been born after the final divorce decree

was filed. The court set a June 9, 2022 hearing on this motion.

{¶ 5} After Dwann failed to appear for the April 5, 2022 hearing, the court set a July

11, 2022 hearing on the matter of the allocation of parental rights and ordered the parties

to appear. On April 26, 2022, the court also referred the case to the Family Relations

Department to conduct a family investigation on parenting time.

{¶ 6} Subsequently, a magistrate filed a decision regarding the SEA’s motion.

The magistrate noted that both Deborah and Dwann had been served but had failed to

appear at the June 9, 2022 hearing. Due to this fact, the magistrate concluded there

was no legal or factual basis to establish child support for N.D.O. and dismissed the SEA’s

motion. Magistrate’s Decision (June 15, 2022). No objections were filed, and the trial

court adopted the decision on July 5, 2022.

{¶ 7} On August 16, 2022, the magistrate filed a decision regarding the motion to

modify parenting time. Deborah had appeared for the July 16, 2022 hearing, but Dwann

had not. The magistrate modified parenting time to allow Dwann increased parenting

time, including from after school on Tuesday until Thursday morning, as well as every

other weekend, all year round. All other parenting time was to remain as previously

ordered. Neither party objected to the decision, and the trial court filed a judgment entry

adopting the magistrate’s decision on September 7, 2022.

{¶ 8} In the meantime, SEA had entered the action again and had filed another

motion to establish and modify support; a hearing on this motion was set for January 12, -4-

2023. The hearing was then continued until March 9, 2023. On March 29, 2023, the

magistrate filed a decision regarding SEA’s motion, which had been heard as scheduled.

The SEA and both parents had been present at the hearing.

{¶ 9} At that time, the magistrate established child support for the child born after

the marriage (designated in the decision as “NyO”), which resulted in a total child support

obligation of $1,062.44 per month for the four children. This was to be paid by Dwann

and included child support, cash medical support, and a processing fee as found on the

attached Child Support Computation Worksheet. The magistrate also granted Dwann

the tax exemption for NyO. The other tax exemptions remained the same. Magistrate’s

Decision (Mar. 29, 2023), p. 3-4. Deborah filed an objection to the magistrate’s decision

on April 3, 2023. On the same day, Deborah requested that a transcript of the March

9, 2023 support hearing be prepared.

{¶ 10} On May 19, 2023, the court filed a decision and judgment overruling

Deborah’s objection to the magistrate’s decision. The court noted that while Deborah

had requested a hearing transcript, she had not provided a deposit as required. As a

result, no transcript was prepared. Decision and Judgment (May 19, 2023), p. 1-2.

{¶ 11} The court further commented that nothing in the magistrate’s decision

reflected the information that Deborah had included in her objection, such as the fact that

Deborah had been claiming NyO as a dependent on her tax returns and had been the

primary caretaker. Id. at p. 2. Based on Deborah’s objection to the tax exemption

decision, the court concluded that the parties had not agreed on which parent should

have the right to claim the child. Id. at p. 3. However, the court also noted the -5-

magistrate’s findings that: (1) Dwann’s earnings included substantial overtime; (2) Dwann

worked full-time, and Deborah worked part-time with no explanation as to why she could

not work full-time; and (3) Dwann earned considerably more annually than Deborah, but

she had the potential to be earning more. Id. The court then found, after considering

the parties’ financial circumstances and the other factors in R.C. 3119.82, that granting

the tax exemption to Dwann was equitable and was in NyO’s best interest. Id. at p. 4.

The court, therefore, adopted the magistrate’s decision and issued a final judgment.

{¶ 12} Deborah filed a pro se notice of appeal from the judgment on June 2, 2023.

The March 9, 2023 hearing transcript was not filed in the trial court until August 2, 2023,

which was obviously after the notice of appeal had been filed.

{¶ 13} On August 3, 2023, the clerk filed an App.R. 11(B) notification and informed

the parties that the record was complete. We then filed a show cause order on August

29, 2023, requiring Deborah to either file a brief or show cause why the appeal should

not be dismissed for lack of prosecution. As a result, Deborah filed a pro se brief on

September 6, 2023. Subsequently, we issued another show cause order, this time to

Dwann on October 3, 2023, because he had failed to file a brief. However Dwann did

not respond to the show cause order or file a brief.

II. Discussion

{¶ 14} As a preliminary point, we note that Deborah’s brief fails to comply in every

way with App.R. 16(A), which specifies items that must be included in briefs, including

(among other things) statements of the assignments of error, statements of the issues, -6-

and argument directed to the assignments of error with citations to authorities and the

record on which the appellant relies. Under App.R. 12(A)(2), “[t]he court may disregard

an assignment of error presented for review if the party raising it fails to identify in the

record the error on which the assignment of error is based or fails to argue the assignment

separately in the brief, as required under App.R. 16(A).” Thus, in the current situation,

we may refuse to consider an appellant’s assignments of error. See Holfinger v.

Stonespring/Carespring, L.L.C., 2d Dist. Montgomery No. 27091, 2016-Ohio-7982, ¶ 27-

31 (declining to consider an issue because appellant failed to comply with the Ohio

Appellate Rules).

{¶ 15} In Holfinger, we also stressed that “[p]ro se litigants ‘are not to be accorded

greater rights and must accept the results of their own mistakes and others.’ ” Id. at ¶ 21,

quoting Meyers v. First Natl. Bank of Cincinnati, 3 Ohio App.3d 209, 210, 444 N.E.2d 412

(1st Dist.1981). Nonetheless, in the interests of justice, we have, at times, considered

arguments pro se parties appear to have made. E.g., Clements v. Brown, 2d Dist.

Montgomery No. 29311, 2022-Ohio-1959, ¶ 7.

{¶ 16} Deborah’s brief appears to claim that the trial court erred in overruling her

objection because: she has supported NyO and has claimed the tax exemption for NyO

since birth; Dwann has not financially supported NyO during that time; Dwann was

unemployed at some point during the litigation but apparently now is employed; and

Dwann has not visited the children. None of these facts are mentioned in the

magistrate’s decision. The law is well established that “[a] reviewing court cannot add

matter to the record before it, which was not a part of the trial court's proceedings, and -7-

then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d

402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.

{¶ 17} An additional important factor is the lack of a transcript. Generally, a trial

court’s adoption of a magistrate’s decision is reviewed for abuse of discretion. Pacetti's

Apothecary, Inc. v. Rebound Bracing & Pain Sols., LLC, 2023-Ohio-93, 206 N.E.3d 61,

¶ 18 (2d Dist.). However, “[w]e cannot consider transcripts that were not before a trial

court when it overruled a party's objections to a magistrate's decision.” Geter v. Geter,

2022-Ohio-2804, 194 N.E.3d 825, ¶ 26 (2d Dist.), citing Daniel v. Daniel, 2d Dist. Miami

No. 2005-CA-9, 2006-Ohio-411, ¶13. “ ‘On appeal of a judgment rendered without the

benefit of a transcript or affidavit, an appellate court only considers whether the trial court

correctly applied the law to the facts as set forth in the magistrate's decision.’ ” Id.,

quoting In re Estate of Lucas, 2d Dist. Montgomery No. 23088, 2009-Ohio-6392, ¶ 32.

{¶ 18} As noted, all parties were present at the child support hearing. The

magistrate’s decision only discussed Dwann’s admission that NyO was his child, and

some financial factors like Deborah’s receipt of SSI for one child and the parties’ relative

incomes and employment status, i.e., the hours they worked and amounts earned.

Considering these factors, the magistrate ordered Dwann to pay child support as stated

above. The magistrate also said that:

The divorce decree allocated the three minor children as dependents

to plaintiff. In light of defendant contributing two-thirds of the combined

gross income used in calculating child support, it is found to be just,

reasonable, and appropriate to allocate the youngest “after-born” child, -8-

NyO, to defendant as a dependent for tax purposes.

Magistrate’s Decision at p. 3.

{¶ 19} As indicated, on review, the trial court limited itself to the facts in the

magistrate’s decision. This was correct, as Civ.R. 53(D)(3)(b)(iii) specifically states: “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.” In the absence of a transcript or affidavit, a trial court has

nothing to consider other than the facts apparent in the magistrate’s decision.

{¶ 20} Concerning the allocation of the tax exemption, the trial court relied on R.C.

3119.82. See Decision and Judgment at p. 4. This was also correct. R.C. 3119.82

requires designation of which parent may claim children as dependents for federal income

tax purposes “whenever a court modifies, reviews, or otherwise reconsiders a court child

support order, or upon the request of any party.” This statute further provides that:

If the parties do not agree, the court, in its order, may permit the parent who

is not the residential parent and legal custodian to claim the children as

dependents for federal income tax purposes only if the court determines

that this furthers the best interest of the children and, with respect to orders

the court modifies, reviews, or reconsiders, the payments for child support

are substantially current as ordered by the court for the year in which the

children will be claimed as dependents. In cases in which the parties do

not agree which parent may claim the children as dependents, the court -9-

shall consider, in making its determination, any net tax savings, the relative

financial circumstances and needs of the parents and children, the amount

of time the children spend with each parent, the eligibility of either or both

parents for the federal earned income tax credit or other state or federal tax

credit, and any other relevant factor concerning the best interest of the

children.

{¶ 21} We review decisions on tax exemptions for abuse of discretion. Baker v.

Baker, 2013-Ohio-1816, 991 N.E.2d 717, ¶ 47 (2d Dist.). However, as noted, the

analysis differs where no transcript was provided for the trial court to consider.

{¶ 22} When the trial court reviewed and adopted the magistrate’s decision, the

facts before it included the parties’ relative income levels, which showed that Dwann’s

income was $53,144 annually. However, Dwann worked substantial overtime, which

added $23,418 to his income in 2022. Decision and Judgment at p. 3. Deborah’s

income was $21,360, but she worked only 24 hours a week. Id. Both the magistrate’s

and trial court’s decisions stressed that Deborah provided no reason why she could not

work full time. Deborah also received tax exemptions for three children while leaving

Dwann with one, while Dwann paid child support and his income significantly increased

the gross combined income for purposes of calculating the support. Furthermore, the

magistrate’s decision noted that Dwann provided health insurance for the children and

that Deborah was receiving SSI for one child. Magistrate’s Decision at p. 2.

{¶ 23} The facts in the magistrate’s decision (which we must credit) also lack any

indication that Dwann was not substantially current with child support payments or that -10-

he would not be eligible to take advantage of a tax exemption.

{¶ 24} While the trial court did not specifically discuss the net tax savings, the court

stated that it had considered the factors in R.C. 3119.82, and there is no indication from

the magistrate’s decision that either side had presented additional evidence or argument

on this point. See Baker v. Baker, 2013-Ohio-1816, 991 N.E.2d 717, ¶ 48 (2d Dist.)

(finding no abuse of discretion in allocation of exemptions where parties submitted

evidence only as to their gross income). See also Dunn v. Dunn, 2d Dist. Clark No.

2005-CA-104, 2006-Ohio-4649, ¶ 17 (“Although the trial court must consider ‘any relevant

factor’ in making its determination, R .C. 3119.82 does not require the trial court to

consider evidence that is not in the record before the court. In other words, a party

cannot complain that the trial court erred in not considering a relevant factor when neither

party offered admissible evidence relating to that factor”). Accordingly, the trial court did

not incorrectly apply the law.

{¶ 25} The final point to consider is that Dwann failed to file a brief. In this regard,

App.R. 18(C) provides that:

If an appellee fails to file the appellee's brief within the time provided

by this rule, or within the time as extended, the appellee will not be heard at

oral argument except by permission of the court upon a showing of good

cause submitted in writing prior to argument; and in determining the appeal,

the court may accept the appellant's statement of the facts and issues as

correct and reverse the judgment if appellant's brief reasonably appears to

sustain such action. -11-

{¶ 26} We cannot apply this rule on Deborah’s behalf, because her brief does not

reasonably appear to sustain reversal of the trial court’s judgment.

{¶ 27} Based on the preceding discussion, Deborah’s assignment of error about

the tax exemption is without merit and is overruled.

III. Conclusion

{¶ 28} Deborah’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

TUCKER, J. and HUFFMAN, J., concur.