Tibbitts v. Tibbitts , 2011 Ohio 5280 ( 2011 )

[Cite as Tibbitts v. Tibbitts, 2011-Ohio-5280.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96746
DAVID R. TIBBITTS
PLAINTIFF-APPELLEE
vs.
LORI V. TIBBITTS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. CV-317918
BEFORE: Sweeney, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: October 13, 2011
ATTORNEY FOR APPELLANT
John V. Heutsche, Esq.
700 West St. Clair Avenue
Hoyt Block Building, Suite 220
Cleveland, Ohio 44113-1274
ATTORNEY FOR APPELLEE
Morton L. Kaplan, Esq.
1415 West Ninth Street, 2nd Floor
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Lori V. Tibbitts (“Lori”) appeals the court’s failure to apply a set-off
against attorney fees the court ordered her to pay to her ex-husband David R. Tibbitts
(“David”) in this post-decree divorce proceeding. After reviewing the facts of the case
and pertinent law, we affirm.
{¶ 2} This appeal involves motions for contempt filed by both parties, which the
court granted after adopting the magistrate’s decision and overruling Lori’s objections.
The April 4, 2011 judgment entry ordered Lori to pay David $750 in attorney fees and
ordered David to pay Lori $1,000 in attorney fees, among other expenses. Lori appeals
raising two assignments of error.
{¶ 3} “I. The trial court erred as a matter of law by ordering separate payments
to be made by each party when only one obligation actually exists. The trial court
should have set-off appellant’s monetary obligation against the appellee’s obligation and
order only appellee to make a payment.”
{¶ 4} “II. The trial court erred by denying appellant’s objections and disregarding
controlling law regarding competing and off-setting monetary obligations.”
{¶ 5} We first note that Lori failed to file a transcript of the hearing before the
magistrate upon which this appeal is based. It is the appellant’s duty to file a transcript
for appellate review. In the absence of a transcript, we must presume regularity at the
trial court proceedings. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523; In
re Z.B., Cuyahoga App. No. 96304, 2011-Ohio-2936.
{¶ 6} Lori argues that the “trial court should have applied a ‘set-off’ of Lori’s
obligation against David and only ordered David to make a payment of $250.00 toward
attorney fees.” Lori supports this argument with the reasoning that there is a mutuality
of parties, as well as the type of debt owed (attorney fees), between the two orders;
therefore, “[t]here is no basis in law or equity for the trial court to ignore the right of
set-off.” However, there is no legal “right” to set-off. It is within the court’s discretion
whether to set off one judgment against another involving the same parties. Krause v.
Krause (1987), 35 Ohio App.3d 18, 518 N.E.2d 1221. Lori can point to no evidence in
the record — particularly without a transcript of the hearing — showing that the court
abused its discretion.
{¶ 7} Accordingly, the assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR