[Cite as Nelson v. Testa,
2024-Ohio-4486.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
TODD HALSEY NELSON, :
Plaintiff-Appellant, :
No. 113280
v. :
MEGAN ELIZABETH TESTA, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 12, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-20-383181
Appearances:
Kubyn & Ghaster and R. Russell Kubyn, for appellant.
James P. Reddy, Jr., for appellee.
LISA B. FORBES, P.J.:
Todd Halsey Nelson (“Husband”) appeals from the domestic
relations court’s judgment entries adopting the magistrate’s decision and granting
him and Megan Elizabeth Testa (“Wife”) a divorce. After reviewing the facts of the
case and pertinent law, we affirm the lower court’s judgment.
I. Facts and Procedural History
Husband and Wife were married on February 15, 2008. The parties
had two children during their marriage. Husband and Wife separated in September
2020, and on October 29, 2020, Husband filed a complaint for divorce. On July 8,
2021, the court issued an order concerning temporary child and spousal support.
On August 20, 2021, Husband filed a motion pursuant to Civ.R. 75(N)(2) requesting
a hearing to modify the temporary order. The court held this hearing via Zoom, and
on January 21, 2022, the court modified the temporary-support award and ordered
Wife to pay Husband $400 per month in child support and $500 per month in
spousal support, plus $100 per month toward arrears. If a transcript of this Zoom
hearing exists, it is not part of the record in this case.
On October 31, 2022, the court issued a journal entry scheduling this
case for trial on January 26, and 27, 2023. No trial was held, however, because the
parties entered into a separation agreement on January 26, 2023. This agreement
resolved all issues except child support and spousal support. In the separation
agreement, the parties stipulated that “child support shall be determined by the
court upon submission of briefs,” and “Husband and Wife will submit briefs to the
court for the determination of any spousal support obligation.”
On February 14, 2023, Husband filed a “motion to set aside and/or
invalidate the separation agreement” based on alleged omissions in Wife’s discovery
responses regarding her income. On February 27, 2023, Wife filed a “brief in
support of maintaining existing child and spousal support orders” along with
various exhibits. The court denied Husband’s motion to set aside or invalidate on
March 2, 2023. In this journal entry denying Husband’s motion, the court ordered
the parties to submit their “trial briefs” in accordance with the separation
agreement, finding that they were originally due on February 27, 2023.
In March 2023, the parties filed the following along with various
attachments: Husband filed a trial brief; Wife filed a brief in opposition to
Husband’s trial brief; Husband filed a reply to Wife’s brief in opposition; and Wife
filed a “reply to [Husband’s] reply to [Wife’s] brief in opposition to [Husband’s] trial
brief.”
On May 10, 2023, the magistrate issued a recommended decision
granting the parties a divorce, adopting the parties’ shared parenting plan and
separation agreement, and ordering that Wife pay Husband $500 monthly in
spousal support for 36 months and $1,211 monthly in child support.
Both parties filed objections to this magistrate’s decision, challenging
the child-support and spousal-support awards. On September 20, 2023, the court
issued a ruling on the objections. First, the court found that both parties failed to
comply with Cuyahoga C.P., D.R.Div., Loc.R. 27(2)(a), which requires any party
objecting to a magistrate’s decision to file an “affidavit of all evidence submitted to
the magistrate” when a transcript of the proceedings at issue is unavailable. The
court acknowledged that the transcript in the case at hand was unavailable “because
this matter was submitted on briefs.” The court further found that, as a result of the
failure to follow this local rule, “the court must adopt the Magistrate’s finding[s] of
fact and will only consider those objections which are based in the Magistrate[’]s
error of law.”
In this same September 20, 2023 journal entry, the court overruled
Husband’s and Wife’s objections to the magistrate’s decision regarding spousal
support and child support. The court also adopted the magistrate’s decision in its
entirety.
On October 10, 2023, the court issued a judgment entry of divorce,
which granted the parties a divorce and ordered into execution the parties’ shared
parenting plan and separation agreement. The judgment entry also ordered Wife to
pay Husband $500 monthly in spousal support for 36 months and $1,211 monthly
in child support.
It is from this order that Husband appeals, raising three assignments
of error for our review.
I. The trial court erred to the prejudice of [Husband] by holding
that the trial court must adopt the Magistrate’s Findings of Fact.
II. The trial court erred to the prejudice of [Husband] and abused
its discretion by affirming the Magistrate’s Decision in
recommending that [Wife] pay to [Husband] only $500.00 per
month as spousal support for only thirty-six months as such was
against the manifest weight and sufficiency of the evidence.
III. The trial court erred to the prejudice of [Husband] and abused
its discretion by affirming the Magistrate’s Decision in
recommending a child support deviation in favor of [Wife] in the
amount of $1,000.00 per month as such was against the
manifest weight and sufficiency of the evidence
After reviewing the facts of the case and pertinent law, we affirm the
lower court’s judgment.
II. Law and Analysis
A. Standard of Review in Divorce Cases
In Feldman v. Feldman, 2009-Ohio-4202, ¶ 11 (8th Dist.), this court
held that
[t]he Ohio Supreme Court has long recognized that a trial court must
have discretion to do what is equitable upon the facts and
circumstances of each divorce case. Booth v. Booth, 44 Ohio St.3d 142,
144,
541 N.E.2d 1028 (1989). Thus, when reviewing a trial court’s
determination in a domestic relations case, an appellate court generally
applies an abuse of discretion standard.
“The term ‘abuse of discretion’ connotes more than an error of law or
of judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157 (1980). In Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219 (1983), the Ohio Supreme Court held that
“[a]lthough Adams dealt with ‘abuse of discretion’ in a criminal law context, . . . the
term has the same meaning when applied in a domestic relations context.”
B. Failure to File Transcript or Affidavit of Evidence Regarding
Proceedings Before the Magistrate
Cuyahoga C.P., D.R.Div., Loc.R. 27(2)(a) states as follows: “If a party
is objecting to factual findings in the Magistrate’s decision, a transcript of the record
of proceedings before the Magistrate must be filed. If a transcript is not available,
the party must file an affidavit of all evidence submitted to the Magistrate.”
Civ.R. 53(D)(3)(b)(iii), which is titled “Objection to magistrate’s
factual finding; transcript or affidavit,” states as follows: “An objection to a factual
finding . . . 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. . . . The objecting party shall file the transcript or affidavit with the
court within thirty days after filing objections. . . .” This court has held that “the
failure to file a transcript or affidavit under Civ.R. 53(D)(3)(b)(iii) waives all factual
challenges to the magistrate’s decision on appeal.” Rosett v. Holmes, 2023-Ohio-
606, ¶ 22 (8th Dist.).
In the case at hand, there is no transcript because the parties agreed
to submit the contested issues of child and spousal support on “trial briefs,” and no
“proceeding” occurred that could have been transcribed. When a transcript is “not
available,” pursuant to Civ.R. 53(D)(3)(b)(iii), the party filing objections to the
magistrate’s decision must file an affidavit of evidence submitted to the magistrate
so that the trial court can conduct an independent review. Because a transcript is
unavailable in the case at hand, the remainder of this opinion refers to an affidavit
of evidence, which is the alternative method of complying with
Civ.R. 53(D)(3)(b)(iii). It is undisputed that neither party filed an affidavit of
evidence in conjunction with their objections to the magistrate’s decision filed in the
trial court.
In Husband’s first assignment of error, he argues that the “trial court
erred to the prejudice of [Husband] by holding that the trial court must adopt the
Magistrate’s Findings of Fact.” Because Husband failed to file an affidavit of
evidence, “the trial court must adopt the factual findings of the magistrate and limit
its review of objections to the conclusions of law by the magistrate.” Burke v.
Mayfield Brainard Auto, 2023-Ohio-446, ¶ 18 (8th Dist.).
Husband argues that the “evidence” was submitted by the parties in
their trial briefs, “[t]hus, the evidence was on the [r]ecord and before the trial court.”
But, as Husband acknowledged in his reply to Wife’s brief in opposition to his trial
brief, Wife’s briefing “only sets forth unsupported and unsubstantiated claims and
allegations.” Upon review, we find the same conclusion applies to Husband’s
briefing.
First, we note that the parties’ arguments in their briefing filed in the
domestic relations court are not evidence. See State ex rel. Cincinnati Enquirer v.
Forsthoefel, 2022-Ohio-3580, ¶ 15 (“[T]he joint motion to seal that [was] filed,
which fleshes out the [parties’] arguments in support of restricting public access, is
not evidence.”).
Husband argues that a Civ.R. 53 affidavit of evidence “is an
alternative when an evidentiary hearing was conducted and a transcript cannot be
produced.” Husband further argues that the requirement of an affidavit of evidence
“does not apply to the instant matter,” presumably because no evidentiary hearing
was held. To support this statement, Husband cites Civ.R. 53(E)(3)(c). We note
that Civ.R. 53 does not include a section (E); that is, there is no Civ.R. 53(E)(3)(c).
Husband also cites Crislip v. Crislip, 2004-Ohio-3254 (9th Dist.), State ex rel.
Pallone v. Ohio Court of Claims,
2015-Ohio-2003, and Ney v. Ney,
2003-Ohio-1349
(8th Dist.). None of these three cases stand for the proposition that a party objecting
to a magistrate’s decision need not comply with Civ.R. 53(D)(3)(b)(iii)’s
requirement of a transcript or affidavit of evidence when no hearing was held.
Our review of the record shows that neither party filed an affidavit of
evidence in compliance with Civ.R. 53 and Cuyahoga C.P., D.R.Div., Loc.R. 27 when
objecting to the magistrate’s decision. In summary, the trial court properly found
that, under Civ.R. 53 and Cuyahoga C.P., D.R.Div., Loc.R. 27, it was required to
accept the magistrate’s factual findings as true. Accordingly, the trial court did not
err or abuse its discretion by adopting the magistrate’s findings of fact, and
Husband’s first assignment of error is overruled.
C. Failure to File Transcript or Statement of Evidence on Appeal
Similar to proceedings before a magistrate, when a transcript is
necessary for the disposition of an appeal, the appellant bears the burden of filing
the transcript. App.R. 9(B). “In the absence of a transcript, we must presume
regularity in the trial court proceedings.” Rosett, 2023-Ohio-606, at ¶ 23 (8th Dist.).
See also Lakewood v. Collins,
2015-Ohio-4389, ¶ 9 (8th Dist.) (“Failure to file the
transcript prevents an appellate court from reviewing an appellant’s assigned
errors.”). In the absence of a transcript, an “appellant may prepare a statement of
the evidence or proceedings from the best available means, including the appellant’s
recollection.” App.R. 9(C). This statement must be approved by the trial court.
Id.
In the case at hand, Husband did not file an App.R. 9(C) statement of
the evidence, and obviously, did not file a transcript in this court. Therefore, we
must presume regularity of the proceedings in the trial court and affirm the
judgment. See, e.g., Farmer v. Healthcare Bridge, 2021-Ohio-3207, ¶ 7 (8th Dist.)
(Holding that, absent a transcript or alternative record under App.R. 9, “we must
presume regularity of the municipal court proceedings and affirm the judgment”).
Husband’s second and third assignments of error concern the
sufficiency of the evidence and the manifest weight of the evidence regarding
spousal and child support in the magistrate’s decision. A review of Husband’s
appellate brief shows that his arguments regarding these two assignments of error
challenge the magistrate’s factual findings. For example, Husband argues that the
magistrate “specifically erred in refusing to consider the incomes of [Wife] from
sources other than her University Hospitals income and the increases in her income
beginning in 2022.” Husband further argues that Wife “provided no competent,
credible evidence to the trial court of the nature or circumstances of her spike in
income.” Husband is challenging the facts found by the magistrate and adopted by
the trial court.
Given the lack of compliance with Civ.R. 53, Cuyahoga C.P., D.R.Div.,
Loc.R. 27, and App.R. 9, we are unable to conduct a meaningful appellate review of
the factual findings the magistrate made that Husband is challenging on appeal.
While we offer no opinion on whether the trial court properly allowed
the magistrate to make dispositive factual findings without a trial, hearing, or other
properly submitted evidence, we affirm the trial court’s judgment because our hands
are tied, and we must presume regularity.
Accordingly, Husband’s second and third 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.
LISA B. FORBES, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR
