Thomas v. Osborne

2013 Ohio 5002

• Court: Ohio Court of Appeals
• Decided: November 11, 2013
• Docket: 13 CA 17
• Status: Published

Opinion

[Cite as Thomas v. Osborne, 2013-Ohio-5002.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

MICHELLE A. THOMAS JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 CA 17 RUSSELL T. OSBORNE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 93 JG 00674

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 11, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW J. WARHOLA 110 North 7th Street Cambridge, Ohio 43725 Guernsey County, Case No. 13 CA 17 2

Wise, P. J.

{¶1} Appellant Russell T. Osborne appeals from the decision of the Court of

Common Pleas, Juvenile Division, Guernsey County, which found him in contempt of

court for failure to pay toward child support arrearages. The relevant facts leading to this

appeal are as follows.

{¶2} Appellant is the father of K.G., now an adult, born in 1989. Appellee

Michelle A. Thomas is K.G.’s mother. On December 14, 1993, appellant was ordered to

pay support for K.G. through the Guernsey County CSEA. Appellant thereafter

repeatedly failed to pay support, resulting in several contempt filings by CSEA and an

arrearage of more than $24,000.00. Appellant is still under a court order to pay $103.02

per month toward his arrearages. In February 2012, appellant was ordered to serve 30

days in jail for contempt.

{¶3} Guernsey County CSEA filed another motion to show cause (contempt) on

January 14, 2013. The matter proceeded to a hearing before a magistrate on March 4,

2013. The magistrate, on March 6, 2013, found appellant in contempt and ordered him

to serve 30 days in jail, with the main purge provision of appellant paying his $24,307.69

arrearage amount down to no more than $23,600.00 by May 31, 2013.

{¶4} Appellant timely filed an objection to the decision of the magistrate. On

April 15, 2013, the trial court issued a judgment entry adopting the decision of the

magistrate.

{¶5} Appellant filed a notice of appeal on May 14, 2013.1 He herein raises the

following two Assignments of Error:

1 Neither Michelle Thomas nor CSEA has filed a response brief in this appeal. Guernsey County, Case No. 13 CA 17 3

{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING

APPELLANT IN CONTEMPT OF COURT WHEN APPELLANT PRESENTED

UNREBUTTED TESTIMONY AND EVIDENCE THAT IT WAS NOT IN HIS POWER TO

OBEY THE CHILD SUPPORT ORDERS OF THE COURT.

{¶7} “II. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW

AND ERRED IN IMPOSING PURGE CONDITIONS UPON APPELLANT THAT WERE

UNREASONABLE AND NOT POSSIBLE FOR HIM TO SATISFY WITHIN THE TIME

LIMITS ORDERED.”

I., II.

{¶8} In his First and Second Assignments of Error, appellant contends the trial

court erred and/or abused its discretion in finding him in contempt of court and in

imposing certain purge conditions regarding the contempt ruling.

{¶9} As an initial matter, we are compelled to review the status of the transcript

in this case. We have held on numerous occasions that where an appellant fails to

provide a transcript of the original hearing before the magistrate for the trial court's

review, the magistrate's findings of fact are considered established. See, e.g., State v.

Leite (April 11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court

has determined that in such a situation, “* * * the appellate court is precluded from

considering the transcript of the hearing submitted with the appellate record.” See State

ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d

1254. “[T]he reviewing court is only permitted to determine if the application of the law

was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist.

Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18. Furthermore, “[t]here is no abuse of Guernsey County, Case No. 13 CA 17 4

discretion on the part of the trial court in its decision to overrule objections to factual

findings where the party objecting has failed to file a transcript.” Remner v. Peshek

(Sept. 30, 1999), Mahoning App.No. 97–CA–98, 1999 WL 803441 (additional citation

omitted).

{¶10} In the case sub judice, the transcript of the magistrate’s hearing appears

to have been prepared in time for the present appeal, but not for the trial court’s review

of appellant’s objection to the decision of the magistrate. Said transcript has on its cover

only a “Court of Appeals” file-stamp date of July 23, 2013, several months after the trial

court’s April 15, 2013 ruling on the objection. Furthermore, the trial court stated in that

ruling: “The respondent requested this court to waive the requirement of a transcript

and requested that this court review the audio tape of the proceedings of March 4,

2013.” Judgment Entry at 1. Finally, the trial court docket shows no request or praecipe

for the preparation of a transcript prior to the notice of appeal to this Court. We therefore

conclude that appellant's objection to the decision of the magistrate was not

accompanied by a transcript of the proceedings before the magistrate. Furthermore,

the trial court did not specifically grant leave to allow presentation of the evidence via

alternative means as set forth in Juv.R. 40(D)(3)(b)(iii).

{¶11} Contempt has been defined as the disregard for judicial authority. State v.

Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “A finding of civil contempt does not

require proof of purposeful, willing, or intentional violation of a trial court's prior order.”

Townsend v. Townsend, Lawrence App. No. 08CA9, 2008–Ohio–6701, ¶ 27, citing

Pugh v. Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. In this instance, the

magistrate determined that appellant had failed to pay as ordered in this arrears only Guernsey County, Case No. 13 CA 17 5

case, resulting in an arrearage of $24,307.69, as of February 28, 2013. Appellant

essentially urges that based on the exhibits presented to the magistrate documenting

his prior felony convictions, incarcerations, and sex offender status, he has no ability to

pay on his arrearage obligation and purge provisions. However, upon our limited review

under the circumstances of this case (Eiselstein, supra), we find no error or abuse of

discretion in the trial court's application of the law to the magistrate's findings of fact.

{¶12} Appellant's First and Second Assignments of Error are therefore

overruled.

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

of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

___________________________________ HON. JOHN W. WISE

___________________________________ HON. PATRICIA A. DELANEY

___________________________________ HON. CRAIG R. BALDWIN

JWW/d 1007 Guernsey County, Case No. 13 CA 17 6

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

MICHELLE A. THOMAS : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RUSSELL T. OSBORNE : : Defendant-Appellant : Case No. 13 CA 17

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is

affirmed.

Costs assessed to appellant.