In re W.O. , 2013 Ohio 5003 ( 2013 )

[Cite as In re W.O., 2013-Ohio-5003.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: W.O. Hon. John W. Wise, P.J.
Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
DELINQUENT CHILD Case No. 13 CA 18
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 09 JA
00018
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 12, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW J. WARHOLA
110 North 7th Street
Cambridge, Ohio 43725
Guernsey County, Case No. 13 CA 18 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 W.O., now an adult, born in 1994. On April 13,
2009, W.O. was found to be a delinquent child by the trial court. On December 15,
2009, the trial court ordered any support orders for the child to be redirected to his
temporary custodian(s). After his release from detention, W.O. was ordered into
juvenile court custody. On February 28, 2012, the trial court found the existence of an
arrearage of more than $1,900.00. Appellant was ordered to pay $24.78 per month
toward his arrearages.
{¶3} Guernsey County CSEA filed a 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 $1,940.23
arrearage amount down to no more than $1,600.00 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
CSEA has not filed a response brief in this appeal.
Guernsey County, Case No. 13 CA 18 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
Guernsey County, Case No. 13 CA 18 4
abuse of 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 18 5
case, resulting in an arrearage of $1,940.23, 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 1008
Guernsey County, Case No. 13 CA 18 6
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: W.O. : JUDGMENT ENTRY
:
:
DELINQUENT CHILD : Case No. 13 CA 18
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.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN