Blevins v. Blevins , 2014 Ohio 3933 ( 2014 )

[Cite as Blevins v. Blevins, 2014-Ohio-3933.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Alex Blevins, :
Plaintiff-Appellant, :
Zhanee Blevins et al., : No. 14AP-175
(C.P.C. No. 07DR-2716)
Plaintiffs-Appellees, :
(REGULAR CALENDAR)
v. :
Michael Blevins, Sr., :
Defendant-Appellee. :
D E C I S I O N
Rendered on September 11, 2014
Alex Blevins, pro se.
Cynthia M. Roy, for appellee.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
O'GRADY, J.
{¶ 1} Plaintiff-appellant, Alex Blevins, appeals from a December 27, 2013
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
which adopted the magistrate's decision. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and appellee were married in 2002. They have three children
together. Their daughter has been emancipated and their two sons are minors. Appellant
filed for divorce in 2007, and the divorce was finalized in 2008. Appellant was named the
residential parent with custody of the children, and appellee was allotted parenting time.
No. 14AP-175 2
At the time of their divorce, both parties lived in Franklin County, Ohio. Appellant
relocated to Marion, Ohio in 2010.
{¶ 3} On September 25, 2012, through counsel, appellee filed a motion to modify
parental rights. Appellee alleged a substantial change in circumstances; namely,
appellant had relocated several times without notifying appellee or the court, which
prevented appellee from exercising his parenting time. Appellee requested an order
reallocating parental rights and responsibilities to align with the best interest of the minor
children. The record reflects the parties and the court used at least five addresses for
appellant during the litigation, previous to appellee filing the motion. The motion itself
was mailed to a new address for appellant: "2230 Mary Lane, Claridon, OH 43302."
There is no indication in the record that service failed. It is apparent that appellant
received notice of the motion because she requested a continuance of the corresponding
hearing. Appellant also signed a waiver of service acknowledging receipt of the motion to
modify parental rights.
{¶ 4} Appellant obtained counsel and, on May 8, 2013, filed a motion to dismiss
appellee's motion to modify parental rights. Appellant alleged appellee did not comply
with interim orders regarding parenting time. Specifically, appellee did not show up on
time for child exchanges at the Marion Police Department, and when he did show up, he
did not leave with the children. Appellant argued appellee's motion should be dismissed
because his actions evidenced his lack of interest in spending more time with the children.
Appellant simultaneously filed a motion for an award of attorney fees incurred in
opposing appellee's motion to modify parental rights. Appellant's counsel withdrew
shortly after filing the motions.
{¶ 5} On August 9, 2013, appellee filed a motion for an order finding appellant in
contempt based on appellant's alleged failure to provide appellee with his court ordered
parenting time. Appellee also moved the court for an award of attorney fees associated
with the motion. The motion was mailed to appellant at the "2230 Mary Lane, Claridon,
OH 43302" address; however, this time service failed. The envelope was returned to the
clerk of courts marked "not deliverable as addressed-unable to forward." (R. 445.)
Appellant later signed a waiver of service acknowledging receipt of the motion for
contempt.
No. 14AP-175 3
{¶ 6} On September 24, 2013, the magistrate ordered appellant and appellee to
take their children to counseling to address issues including, but not limited to, the
children's relationship with their father and the impact of their parents' negative
relationship.
{¶ 7} On December 18, 2013, the magistrate rendered a decision complete with
findings of fact and conclusions of law, which resolved the above motions. The decision
indicates a hearing was held on September 19, 20 and 24, 2013, and a court reporter made
a record of the proceedings. The magistrate noted appellee was represented by counsel
and appellant chose to proceed without counsel. Both parties testified and presented
evidence. The magistrate found that appellant's move to Marion, Ohio constituted a
substantial change of circumstances for the minor children. The magistrate then
determined the best interest of the children by applying the factors in R.C. 3109.04(F)(1).1
The magistrate granted appellee's motion to modify parental rights in part. Appellant
remained the residential parent and legal custodian of the children. Appellee was
allocated additional responsibilities and the terms of his parenting time were modified.
Of note, the magistrate ordered:
[Appellant] shall deliver the children to [appellee's] home at
the commencement of [appellee's] parenting time and
[appellee] shall return the children to [appellant's] home at
the end of his parenting time. All exchanges shall be "curb
side," such that the parties shall not exit his/her vehicle when
delivering the children to the other party's home.
(Magistrate's Decision, 12.) The magistrate reduced appellee's child support obligation
finding it "appropriate to impute minimum wage to [appellant]." (Magistrate's Decision,
8.) The magistrate noted appellant worked part-time as a home health aide, she was
articulate and intelligent, and there was no indication appellant could not earn minimum
wage. By granting appellee's motion to modify parental rights in part, the magistrate
implicitly denied appellant's motion to dismiss. The magistrate denied appellant's
corresponding motion for an award of attorney fees because appellant did not present any
evidence to substantiate the fees. The magistrate granted appellee's motion to find
1The magistrate noted, among other things, that neither party requested a psychological evaluation of the
children.
No. 14AP-175 4
appellant in contempt based on her admissions that she denied appellee his parenting
time in violation of the court's orders. Finally, the magistrate granted appellee's motion
for an award of attorney fees associated with filing the motion for contempt. The
magistrate's decision concluded with a notification in bold type stating:
A party shall not assign as error on appeal the court's
adoption of any factual finding or legal conclusion, whether or
not specifically designated as a finding of fact or conclusion of
law under Civ. R. 53(D)(3)(a)(ii) or Juv. R. 40(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ. R. 53(D)(3)(b)
or Juv. R. 40(D)(3)(b).
(Emphasis omitted.) (Magistrate's Decision, 15.)
{¶ 8} On December 27, 2013, the trial court adopted the magistrate's decision as
the judgment of the court. The trial court recognized that a three-day hearing was held on
the matter, and found "no error of law or other defect on the face of the magistrate's
decision." (R. 456.) The court's judgment entry references Civ.R. 53 and indicates timely
objections would be considered.
{¶ 9} The magistrate's decision and the judgment entry adopting the decision
were mailed to appellant at "PO Box 2482, Marion, OH 43301-2482." (R. 458.) On
February 3, 2014, the envelope was returned to the clerk of courts marked "undeliverable
as addressed-no forwarding order on file" and "box closed-unable to forward." (R. 458.)
The clerk attempted service a second time on February 4, 2014 by mailing the orders to
appellant at "2230 Mary Lane, Claridon, OH 43302." There is no indication service at
that address failed. No objections to the magistrate's decision were filed.
{¶ 10} On March 3, 2014, appellant filed a notice of appeal referencing the
December 27, 2013 judgment entry. At the same time, appellant filed an affidavit of
indigency and a financial disclosure form indicating her address was "2230 Mary Lane,
Marion, OH 43302." Appellant also requested that a transcript of the hearing before the
magistrate be prepared and filed. The transcript was filed with the trial court on
March 28, 2014.
No. 14AP-175 5
II. ASSIGNMENTS OF ERROR
{¶ 11} Appellant presents us with the following six assignments of error to review:
I. THE [TRIAL] COURT ERRED IN NOT GRANTING THE
PLAINTIFF-APPELLANT'S MOTION TO DISMISS
DEFENDANT-APPELLEE['S] MOTION FOR
REALLOCATION OF PARENTAL RIGHTS AND
RESPONSIBILITIES AND TO ORDER SANCTIONS
AWARDING TO PLAINTIFF HER ATTORNEY FEE[']S.
II. THE [TRIAL] COURT ERRED IN NOT OBTAINING THE
RECOMMENDATION REGARDING THE MINOR
CHILDREN'S COUNSELING AND IN NOT CONSIDERING
ALL RELEVANT FACTORS IN DETERMINING THE BEST
INTEREST OF THE CHILDREN.
III. THE [TRIAL] COURT ERRED BY REDUCING
RETROACTIVELY DEFENDANT[']S CHILD SUPPORT
WITHOUT CAUSE, WHICH IS NOT IN THE BEST
INTEREST OF THE MINOR CHILDREN.
IV. THE [TRIAL] COURT ERRED IN GRANTING
DEFENDANT ACCESS TO PLAINTIFF'S HOME DURING
VISITATION, WHEN [TRIAL] COURT WAS AWARE OF
THE DOMESTIC VIOLENCE AND STALKING ISSUES
WHICH CREATED FEAR AND CONCERNS OF SAFETY
FOR PLAINTIFF.
V. THE [TRIAL] COURT ERRED BY FINDING PLAINTIFF-
APPELLANT IN CONTEMPT WHEN NO EVIDENCE WAS
PRESENTED SHOWING APPELLANT OBSTRUCTED
VISITATION, EXCEPT UNSUPPORTED ORAL TESTIMONY
BY THE APPELLEE-DEFENDANT.
VI. THE [TRIAL] COURT ERRED IN DENYING PLAINTIFF-
APPELLANT THE OPPORTUNITY TO OBJECT TO THE
MAGISTRATE'S DECISION BEFORE SUBMITTING IT TO
JUDGE FOR FINAL ORDER.
III. PRELIMINARY MATTERS
{¶ 12} We first note appellant makes allegations in her briefs that fall outside the
parameters of her assignments of error. For instance, appellant alleges, without
explanation, that she was denied legal representation at the hearing before the magistrate
and that her civil rights were violated. Pursuant to App.R. 12(A)(1)(b), an appellate court
No. 14AP-175 6
must " 'determine [an] appeal on its merits on the assignments of error set forth in the
briefs under App.R. 16.' Thus, this court rules on assignments of error only, and will not
address mere arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553,
¶ 70, quoting In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5.
Accordingly, we will address appellant's assignments of error only and disregard her
extraneous allegations, which we note are not supported by the record properly before
this court. See Bonn v. Bonn, 10th Dist. No. 12AP-1047, 2013-Ohio-2313, ¶ 9.
{¶ 13} Also, appellant did not file objections to the magistrate's decision. Civ.R.
53(D)(3)(b)(iv) states: "[e]xcept for a claim of plain error, a party shall not assign as error
on appeal the court's adoption of any factual finding or legal conclusion * * * unless the
party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)."
Accordingly, we are limited to plain error review in this appeal. PHH Mtge. Corp. v.
Santiago, 10th Dist. No. 11AP-562, 2012-Ohio-942, ¶ 8, citing In re G.S., 10th Dist. No.
10AP-734, 2011-Ohio-2487, ¶ 6, and Nyamusevya v. Nkurunziza, 10th Dist. No. 11AP-
137, 2011-Ohio-5287, ¶ 9. The plain error doctrine only applies in the "extremely rare
case involving exceptional circumstances where error, to which no objection was made at
the trial court, seriously affects the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself." Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
{¶ 14} Finally, a transcript of the proceedings before the magistrate is part of the
record on appeal; however, the transcript was not before the trial court when it adopted
the magistrate's decision. "Appellate review is limited to the record as it existed at the
time the trial court rendered its judgment." Franks v. Rankin, 10th Dist. No. 11AP-934,
2012-Ohio-1920, ¶ 73, citing Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-
64, 2011-Ohio-5616, ¶ 13; Wallace v. Mantych Metalworking, 189 Ohio App.3d 25, 2010-
Ohio-3765, ¶ 10 (2d Dist.). " 'A reviewing court cannot add matter to the record before it,
which was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter.' " Id., quoting State v. Ishmail, 54 Ohio St.2d 402 (1978),
paragraph one of the syllabus. Therefore, we will not consider the transcript in ruling on
appellant's assignments of error. " ' "When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has nothing
No. 14AP-175 7
to pass upon and thus, as to those assigned errors, the court has no choice but to presume
the validity of the lower court's proceedings, and affirm." ' " Black v. Columbus Sports
Network, L.L.C., 10th Dist. No. 13AP-1025, 2014-Ohio-3607, ¶ 39, quoting Estate of
Stepien v. Robinson, 11th Dist. No. 2013-L-001, 2013-Ohio-4306, ¶ 29, quoting Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
IV. DISCUSSION
{¶ 15} We will address appellant's assignments of error out of order. Under
appellant's sixth assignment of error, she argues the trial court erred by denying her an
opportunity to object to the magistrate's decision before the trial court rendered judgment
adopting the decision. We disagree.
{¶ 16} Appellant does not put forth a structured argument in support of this
assignment of error. She simply discusses the confusion regarding her mailing address,
for which she blames appellee and, to a lesser degree, the trial court. Our review of the
record indicates the trial court used at least eight different addresses for appellant
throughout the life of this case, with varying results, and appellant never attempted to
keep the trial court abreast of her correct mailing address. Appellant "bears the burden of
formally notifying the court of a change of address; the clerk is not charged with the duty
of perusing the record to ensure that a party's mailing address has not changed. This
obligation applies equally to pro se litigants * * *. Given that informing the trial court of a
new address is relatively simple, it follows that the burden of satisfying this requirement
cannot be shifted to the opposing party or the trial court." (Internal quotations and
citations omitted.) State ex rel. Halder v. Fuerst, 118 Ohio St.3d 142, 2008-Ohio-1968,
¶ 6; Leader Ins. Co. v. Moncrief, 10th Dist. No. 05AP-1289, 2006-Ohio-4232, ¶ 39.
Appellant failed to keep the trial court informed of her correct address. Indeed, the
address appellant used on the financial disclosure form she filed along with her notice of
appeal is different than any address used in the other filings pertinent to this appeal. The
burden of notifying the court of a change in address was appellant's alone. Thus, we
observe no error stemming from the confusion regarding appellant's address.
{¶ 17} Appellant also complains she was prevented from objecting since the trial
court adopted the magistrate's decision the same day it was issued. Appellant is
mistaken; the trial court's decision was rendered nine days later. Regardless, the trial
No. 14AP-175 8
court's orders directed appellant's attention to Civ.R. 53, her opportunity to object to the
magistrate's decision, and the consequences of a failure to object. Additionally, the trial
court's Loc.R. 9, which appellant cites in her assignment of error, directs appellant to
Civ.R. 53 and her opportunity to object. See Loc.R. 9 of the Franklin County Court of
Common Pleas, Division of Domestic Relations ("A decision of a Domestic Magistrate
may be reviewed by the assigned Judge of this Court by filing an objection in accordance
with Rule 53 of the Ohio Rules of Civil Procedure."). Civ.R. 53 clearly communicates that
objections are required in order to preserve issues for appeal (except for claims of plain
error), and the rule does not require objections to be filed before the magistrate's decision
is adopted by the trial court. Civ.R. 53(D)(3)(b)(iv), (a)(iii), and (b)(i) ("A party may file
written objections to a magistrate's decision within fourteen days of the filing of the
decision, whether or not the court has adopted the decision during that fourteen-day
period.").
{¶ 18} We note, due to an initial failure of service, appellant did not receive the
magistrate's decision and the trial court's judgment entry in a timely manner. Appellant
does not dispute that she received the orders pursuant to the subsequent attempt at
service. We have recognized, in the unusual circumstance that a magistrate's decision is
served in an untimely manner, "Civ.R. 53(D)(5) provides that either party may, 'for good
cause shown,' move the trial court to set aside the magistrate's decision or to extend the
time for filing objections to the report." Watley v. Dept. of Rehab. & Corr., 10th Dist. No.
06AP-1128, 2007-Ohio-1841, ¶ 10, citing the Staff Notes to Civ.R. 53(D)(5) (" ' "Good
cause" would include the failure of a party to receive timely service of the magistrate's
order or decision.' "). Appellant should have filed objections or moved the trial court for
an extension of time to do so, pursuant to Civ.R. 53(D)(5), after receiving the magistrate's
decision and the judgment entry adopting the decision. Id. at ¶ 12. Appellant was not
denied her opportunity to object. Accordingly, appellant's sixth assignment of error is
overruled.
{¶ 19} Under appellant's first assignment of error, she argues the trial court erred
by denying her motion to dismiss appellee's motion to modify parental rights, and by
denying her corresponding motion for an award of attorney fees. We disagree.
No. 14AP-175 9
{¶ 20} Appellant's motion to dismiss was essentially a memorandum in opposition
to appellee's motion to modify the parties' parental rights. Appellant's motion contains
her version of the facts relating parenting time between appellee and their children. The
magistrate held a three-day hearing on matters, including the motions at issue in this
assignment of error, during which appellant and appellee both testified and presented
evidence. The magistrate was in the best position to assess the credibility of both parties
with regard to their version of the facts. Without the benefit of a transcript of the hearing,
we must presume the validity of the proceedings below. Black at ¶ 39, citing Knapp at
199. We can only review the magistrate's decision for plain error. In the decision, the
magistrate commented, "[appellant's] testimony was less than credible." (Magistrate's
Decision, 6.) Regarding appellant's motion for an award of attorney fees, the magistrate
noted, "[appellant] did not present any evidence to support her motion." (Magistrate's
Decision, 9.) Under these circumstances, we find appellant's motions were properly
denied. There is no plain error. Accordingly, appellant's first assignment of error is
overruled.
{¶ 21} Under appellant's second assignment of error, she argues the trial court
erred by "not obtaining the recommendation regarding the minor children's counseling,"
and by not considering all the relevant factors in determining the best interest of the
children. We disagree.
{¶ 22} Appellant references the magistrate's September 24, 2013 order regarding
counseling in support of this assignment of error. That order was issued on the final day
of the hearing before the magistrate; therefore, the magistrate could not have considered
a report or recommendation from a counselor the children may have seen pursuant to
that order. Nothing in the record indicates that the parties complied with the order and
took the children to counseling. Furthermore, the magistrate noted in her decision that
neither party requested a psychological evaluation, and our review of the magistrate's
decision does not reveal any unaddressed psychological concerns. This portion of
appellant's assignment of error is without merit. Appellant's subsequent contention that
the trial court erred in determining the best interest of the children is based on appellant's
personal assessment of what is in the best interest of the children. She supports her
position by referencing testimony allegedly given during the hearing before the
No. 14AP-175 10
magistrate; however, as we explained above, we cannot consider the transcript of the
hearing. Our review of the magistrate's decision reveals the magistrate complied with the
law in identifying and evaluating the factors pertinent to determining the children's best
interest. We find no plain error. Accordingly, appellant's second assignment of error is
overruled.
{¶ 23} Under appellant's third assignment of error, she argues the trial court erred
by reducing appellee's child support obligation without cause and against the best interest
of the children. We disagree.
{¶ 24} Appellant does not present any argument specific to the magistrate's
modification of child support. Appellant certainly has not identified plain error on the
face of the magistrate's decision that undermines the "basic fairness, integrity, or public
reputation of the judicial process." Goldfuss at syllabus; see PHH Mtge. Corp. at ¶ 10.
Our review of the magistrate's decision reveals an analysis of the parties' financial
situations as reflected on a child support worksheet. The magistrate found the "child
support per the worksheet is appropriate and in the best interests of the minor children."
(Magistrate's Decision, 9.) We cannot review the worksheet itself because it is an exhibit
filed along with the transcript of the proceedings before the magistrate. We find no plain
error in the magistrate's decision regarding child support. Accordingly, appellant's third
assignment of error is overruled.
{¶ 25} Under appellant's fourth assignment of error, she argues the trial court
erred by granting appellee access to her home during visitation, although the court was
aware of domestic violence and stalking issues that created fear and concern for
appellant's safety. We disagree.
{¶ 26} The trial court did not grant appellee access to appellant's home. The
magistrate's decision mandates that all child exchanges are to be "curb side," and neither
party is to exit his or her vehicle during the exchanges. (Magistrate's Decision, 12.)
Although appellant alleges the trial court was aware of domestic violence and stalking
issues, the magistrate's decision does not reflect that appellant brought concerns about
her safety to the magistrate's attention, and without the benefit of a transcript, we must
presume the validity of the magistrate's proceedings. We find no plain error. Accordingly,
appellant's fourth assignment of error is overruled.
No. 14AP-175 11
{¶ 27} Under appellant's fifth assignment of error, she argues the trial court erred
by finding her in contempt "when no evidence was presented showing appellant
obstructed visitation, except unsupported oral testimony by the appellee." We disagree.
{¶ 28} Appellant's assertion is contradicted by the record. The magistrate found
appellant in contempt based on her own admissions that she withheld parenting time,
and her failure to establish a viable defense to her actions. Appellant places blame on
appellee, claiming he did not fulfill his obligations with regard to parenting time.
However, to the extent there was competing testimony on the issue at the hearing, the
magistrate was in the best position to assess the parties' credibility. We cannot review the
transcript of the proceedings before the magistrate, and we presume the validity of those
proceedings. Black at ¶ 39, citing Knapp at 199. Appellant has not identified plain error
in the magistrate's decision, and we find none. Accordingly, appellant's fifth assignment
of error is overruled.
V. APPELLANT'S PENDING MOTION TO STAY
{¶ 29} On August 6, 2014, appellant moved this court to stay the trial court's
orders underlying this appeal. In her motion, appellant alleges a number of errors by the
trial court, which have either been considered above, or should have been included in
appellant's assignments of error in order to be properly considered. Having overruled all
of appellant's assignments of error, the basis for appellant's motion is eliminated.
Accordingly, the motion is denied.
VI. CONCLUSION
{¶ 30} For the foregoing reasons, appellant's six assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, is affirmed.
Motion denied;
judgment affirmed.
SADLER, P.J., and DORRIAN, J., concur.