[Cite as Hurst v. Hurst,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: WENDY M. HURST (RAMSEY) : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 12-CA-70 MARK E. HURST : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Domestic Relations Division, Case No. 07-DR-00993 RPW

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 24, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK E. HURST WENDY M. HURST (RAMSEY) A-586245, D-5 o/o CCI Box 5500 Chillicothe, OH 45601 [Cite as Hurst v. Hurst,

.]

Gwin, P.J.

{¶1} Appellant Mark E. Hurst appeals the decision of the Licking County Court

of Common Pleas, Domestic Relations Division that denied his motion to modify child

visitation regarding his two minor children and denied his motion for contempt.1

Appellee Wendy M. Ramsey [fna “Hurst”] [“Mother”] is appellant's former spouse and

the mother of these two children.2

Facts and Procedural History

{¶2} On August 11, 2009, Mother and Appellant were granted a divorce. The

parties have two children born of the marriage, D.H. (06/27/2001) and W.H.

(05/21/2003). Mother was named the sole custodian and residential parent of the

parties’ children. The divorce decree further provided,

3. PARENTING TIMES, VACATIONS, AND HOLIDAYS. The

Defendant [Appellant] shall have no parenting time with the minor children

until further order of this Court. Further, there shall be no phone contact

with the minor children pending further order of this Court.

{¶3} Appellant did not appeal the decision. On August 6, 2008, Appellant was

found guilty of pandering obscenity involving a minor, in violation of R.C.

2907.321(A)(5); pandering sexually-oriented matter involving a minor, in violation of

R.C. 2907.322(A)(5); and illegal use of a minor in nudity-oriented material or

performance, in violation of R.C. 2907.323(A)(3). The offenses were alleged to have

taken place in March and April 2007. See, State v. Hurst, 5th Dist. No. 2008-CA-0104,

1 Appellant has abandoned his complaint to determine parentage of a third child J.M.R. (07/15/2008]. Appellant concedes he is not the father and filed a motion on May 20, 2013 to remove that issue from this appeal, which this Court has granted. 2 Appellee did not file a brief in this matter. Licking County, Case No. 12-CA-70 3

. Appellant served his full term, and was released under the supervision

of the Adult Parole Authority in November of 2011. See, State v. Hurst, 5th Dist. No. 12-

CA-20,

(vacating Appellants classification as a sexually oriented

offender pursuant to State v. Williams,

, 2011–Ohio–3374 because

none of the offenses for which Appellant was convicted were considered a sexually

oriented offense under the previous version of R.C. 2950.01(D)).

{¶4} On September 13, 2011, Mother filed her notice of intent to relocate with

the children. Pursuant to the issuance of a Civil Protection Order, Mother’s address was

not released to Appellant and has been sealed. (T. at 52).

{¶5} On January 19, 2012, Appellant filed a pro se motion, which the trial court

characterized as a motion to modify parenting times, and a motion for contempt against

Mother. The trial court advised Appellant to re-file the contempt motion because he had

not followed the required procedures for the filing of a motion for contempt. On January

23, 2012, Appellant filed a verified motion for contempt. Both motions were set for an

evidentiary hearing before a magistrate on April 12, 2012.

{¶6} Appellant and Mother appeared pro se at the hearing. Each testified and

was cross-examined by the other. Relevant to this appeal, Mother additionally called

two witnesses.

{¶7} On May 10, 2012, the magistrate filed her findings of fact and conclusions

of law denying Appellant’s motions. On May 14, 2012, Appellant filed his objections to

the magistrate’s decision. The trial court overruled Appellant’s objections noting that

Appellant failed to request a transcript of the April 12, 2012 hearing before the

magistrate by judgment entry filed July 17, 2012. Licking County, Case No. 12-CA-70 4

{¶8} On July 18, 2012, Appellant filed a motion to reconsider his objections

together with an affidavit of indigency. The trial court denied Appellant’s motion by

Judgment Entry filed August 6, 2012, noting that Appellant never requested a transcript

or an extension of time to obtain one.

{¶9} The trial court affirmed the magistrate’s decision and denied each of

Appellant’s motions by Judgment Entry filed August 6, 2012.

Assignments of Error

{¶10} Appellant raises seven pro se assignments of error,

{¶11} “I. HEARSAY EVIDENCE AND TESTIMONY.

{¶12} “II. ABUSE OF DISCRETION.

{¶13} “III. SUFFICIENT AND COMPELLING EVIDENCE.

{¶14} “IV. DEPRIVATION OF LIBERTY AND PROPERTY.

{¶15} “V. BIAS AND PREJUDICE.

{¶16} “VI. DOUBLE JEOPARDY.

{¶17} “VII. THE MAGISTRATE VIOLATED THE APPELLANTS

CONSTITUTIONAL, 14tth AMMENDMENT [sic.] RIGHT TO EQUAL PROTECTION

AND TREATMENT.”

Pro se Appellants

{¶18} We understand that Appellant has filed this appeal pro se. Nevertheless,

“like members of the bar, pro se litigants are required to comply with rules of practice

and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-

Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022,

. We also understand that “an appellate court will ordinarily indulge a pro se litigant Licking County, Case No. 12-CA-70 5

where there is some semblance of compliance with the appellate rules.” State v.

Richard, 8th Dist. No. 86154,

, ¶4 (internal quotation omitted).

{¶19} In State v. Hooks,

,

,

(2001), the Supreme Court noted, “a reviewing court cannot add matter to the

record before it that was not a part of the trial court's proceedings, and then decide the

appeal on the basis of the new matter. See, State v. Ishmail,

,

(1978).” It is also a longstanding rule "that the record cannot be enlarged by

factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411,

(Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards,

,

(1963). New material and factual assertions contained in

any brief in this court may not be considered. See, North v. Beightler,

,

,

, quoting Dzina v. Celebrezze,

,

,

. Therefore, we have disregarded facts and

documents in Appellant’s brief that are outside of the record.

{¶20} In the interests of justice, we shall attempt to consider Appellant’s

assignments of error.

Failure to File transcript with the Trial Court

{¶21} We first must address Appellant’s failure to present a transcript to the trial

court for its review of Appellant’s objections to the magistrate’s decision. Appellant filed

the transcript of the full hearing in this court with his appeal. The trial court never had

the opportunity to review the transcript when considering Appellant’s objections to the

magistrate’s decision.

{¶22} Civ. R. 53(D)(3)(b)(iii) provides: Licking County, Case No. 12-CA-70 6

(iii) Objection to magistrate's factual finding; transcript or affidavit.

An objection to a factual finding, whether or not specifically designated as

a finding of fact under Civ. R. 53(D)(3)(a)(ii), 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. With

leave of court, alternative technology or manner of reviewing the relevant

evidence may be considered. The objecting party shall file the transcript or

affidavit with the court within thirty days after filing objections unless the

court extends the time in writing for preparation of the transcript or other

good cause. If a party files timely objections prior to the date on which a

transcript is prepared, the party may seek leave of court to supplement the

objections.

{¶23} 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 and may not be attacked on appeal. Stark v. Haser, 5th Dist.

No. 03CAF11057, 2004–Ohio–4641, ¶15; Lamp v. Linton, 5th Dist. No. 2011-CA-06,

; State v. Leite, 5th Dist. No.1999AP090054,

(April 11,

2000); Fogress v. McKee 5th Dist. No. 99CA15,

(Aug. 11, 1999. If an

objecting party fails to provide the trial court with the transcript of the proceedings

before the magistrate, the appellate court is precluded from considering the transcript of

the magistrate's hearing. State ex rel. Duncan v. Chippewa Twp. Trustees,

,

, 1995–Ohio–272. Licking County, Case No. 12-CA-70 7

{¶24} Appellant could have, but did not seek to file an affidavit of the evidence

under Civ.R. 53(D)(3)(b)(iii). See e.g., State ex rel. Motley v. Capers,

,

(1986).(Holding that a transcript is “unavailable” for purposes of App.R.

9(C) which allows the use of narrative statements when indigent appellant is unable to

bear cost of providing transcript); Lamp v.

{¶25} In Robinson v. Custom Sports Cycle, this Court noted,

While significant case law exists which would allow for a free

transcript for an indigent criminal defendant, (see, e.g., State v. Arrington

(1975),

,

; Mayer v. City of Chicago

(1971),

,

,

), or a party involved in

certain parental rights proceedings (see, e.g., State ex rel. Heller v. Miller

(1980),

,

), we would concur with the

wording of the Tenth District Court of Appeals: “While in criminal appeals a

single copy of the transcript must be prepared at government expense and

filed with the court for those who are demonstrated to be indigent, no

similar responsibility must be borne by the government in the appeal of

civil cases.” Duff v. Ohio Dept. of Rehabilitation and Correction (June 30,

1992), Franklin App. No. 92AP-146, unreported, at 1

{¶26} In addition, we have no reason to question the magistrate's credibility

determination. The magistrate, having observed the live testimony, was in a superior

position when compared to this court to judge the credibility of Mother and Appellant.

State v. Gordon, 10th Dist. No. 10AP–1174, 2011–Ohio–4208, ¶14 (triers of fact were in

a much better position to adjudge the credibility of the witnesses given their ability to Licking County, Case No. 12-CA-70 8

view the witnesses' live testimony). Our inability to even review the transcript testimony

makes it nearly impossible for us to overturn the magistrate's credibility determination.

See, e.g., Elyria v. Rowe,

,

(9th Dist. 1997)

(because of appellant's failure to provide a transcript of the proceedings below, the

appellate court could not review the credibility of the witnesses who testified and

presumed the trial court's findings were correct); Murray v. Murray, 5th Dist. No. 01–

CA00084, 2002–Ohio–2505 (with no transcript of the evidentiary hearing having been

filed, we must assume that the trial court properly considered the evidence and

credibility of the witnesses).

{¶27} Further, Appellant's failure to provide the trial court with a transcript of the

magistrate trial precludes him from challenging the decision or judgment as being

against the manifest weight of the evidence. GMS Mgt. Co., Inc. v. Coultier, 11th Dist.

No.2005–L–071, 2006–Ohio–1263, ¶ 26.

{¶28} Because Appellant did not file a transcript of the proceedings before the

magistrate with his objections, the factual findings of the magistrate are deemed

established and may not be attacked on appeal. Accordingly, we review Appellant’s

assignments of error only to analyze whether the trial court abused its discretion in

reaching specific legal conclusions based upon the established facts. We find no abuse

of discretion in the trial court's approval and adoption of the magistrate's decision not to

grant Appellant parenting time with the two minor children and not finding Mother in

contempt. Licking County, Case No. 12-CA-70 9

I.

{¶29} After reviewing Appellant’s brief including his contentions, we have

interpreted Appellant’s first assignment of error in the following manner: the trial court

erred in allowing Mother to testify that the children had told her Appellant showered

nude with them.

{¶30} During the evidentiary hearing, the following exchange occurred,

[Appellant]: Do you have any evidence that –that the defendant

was naked when he took a shower with these children?

[Mother]: They said you were.

(T. at 45). Appellant did not move to strike the response.

{¶31} “The general rule is that ‘an appellate court will not consider any error

which counsel for a party complaining of the trial court's judgment could have called but

did not call to the trial court's attention at a time when such error could have been

avoided or corrected by the trial court.’ State v. Childs (1968),

[ 43

O.O. 2d 119],

, paragraph three of the syllabus; State v. Glaros (1960),

[

],

, paragraph one of the syllabus;

State v. Lancaster (1971),

[

],

,

paragraph one of the syllabus.” State v. Williams,

,

(1977), superseded on other grounds by State v. Gillard,

,

(1988).

{¶32} Civ.R. 61 sets forth the harmless error rule in civil cases, providing that no

error or defect in any ruling is, “ground for granting a new trial or for setting aside a

verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless Licking County, Case No. 12-CA-70 10

refusal to take such action appears to the court inconsistent with substantial justice.”

Generally, in order to find that substantial justice has been done to an appellant so as to

prevent reversal of a judgment for errors occurring at the trial, the reviewing court must

not only weigh the prejudicial effect of those errors but also determine that, if those

errors had not occurred, the jury or other trier of the facts would probably have made

the same decision.” Hallworth v. Republic Steel Corp.,

,

(1950), paragraph three of the syllabus.

{¶33} In the case at bar, the case was tried to a magistrate not a jury. In

examining the record to determine this issue, we may give weight to the fact that the

error occurred in a trial to the court, rather than in a jury trial. State v. White,

,

(1968); State v. Austin,

,

(10th Dist. 1976). Indeed, a judge is presumed to consider only the relevant,

material and competent evidence in arriving at a judgment, unless the contrary

affirmatively appears from the record. State v.

,

; State v. Eubank,

,

(1979);

Columbus v. Guthmann,

,

(1963), paragraph three of

the syllabus.

{¶34} Based upon the entire record before us, we conclude that any error in the

admission of the statement was harmless and if that error had not occurred, the trier of

the facts would have made the same decision.

{¶35} Appellant’s first assignment of error is overruled. Licking County, Case No. 12-CA-70 11

II & III

{¶36} After reviewing Appellant’s brief including his contentions, we have

interpreted Appellant’s second and third, assignments of error in the following manner:

the trial court abused its discretion in denying Appellant parenting time with the children.

Specifically, Appellant contends that the magistrate’s opinion is based upon insufficient

evidence.

Visitation

{¶37} A trial court enjoys broad discretion in deciding matters regarding the

visitation rights of nonresidential parents, and its decision is subject to reversal only

where there is an abuse of discretion. Appleby v. Appleby,

,

(1986). Thus, the standard of review for matters concerning visitation rights

is whether the trial court committed an abuse of discretion. Booth v. Booth,

,

(1989); Corple v. Corple,

,

(1997). An abuse of discretion implies that “the court's attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

,

(1983).

{¶38} In his motion, Appellant requested supervised visitation time with his adult

son Brian Hurst as the supervisor.

{¶39} Contemporaneously with the filing of the initial divorce action, Mother and

Appellant entered into a consent agreement granting Mother a Permanent Civil

Protection Order. (Motion to Amend Civil Protection Order, filed, Sept. 19, 2007, in Case

No. 07 DR 817, attached as Exhibit 5 to Appellant’s Brief). That order gave Appellant

visitation with his children under the supervision of Timothy Crowley, Brian Hurst, who is Licking County, Case No. 12-CA-70 12

the adult son of Appellant and Becky Hurst, who is the Appellant’s sister. The motion to

amend that order alleged that Appellant had showered with his then six-year-old

daughter. The motion further noted that Appellant had been indicted for pandering

obscenity involving a minor, illegal use of a minor in nudity oriented material or

performance.

{¶40} Appellant did not deny the showering incident that occurred during his

supervised time; rather he claimed that he was not naked while in the shower with both

the six-year-old daughter and his four-year-old son. He further contended that his sister,

Becky Hurst was present the entire time. (Appellant’s Brief at 3). Following that incident,

Appellant’s parenting time was modified so it took place at the Woodlands, a private

non-profit organization that provided supervised parenting time facilities. The

Woodlands no longer offers supervised parenting time facilities. At the hearing,

Appellant cited the report of the Guardian ad Litem filed April 24, 2008, which

recommended additional midweek visitation supervised at The Woodland and

unverified, unauthenticated documents titled “The Woodlands Family Connections

Center Visitation Observation Report” to support his request for visitation.3

{¶41} In reaching her conclusion that it would not be in the best interests of the

minor children to allow Appellant any parenting time with them at this point, the

magistrate made specific factual findings. As previously noted, however, in the case at

bar our review is limited to whether the trial court correctly applied the law to the facts

as set forth in the magistrate's decision.

3 The visitation observation reports were not admitted into evidence during the magistrate’s hearing. Licking County, Case No. 12-CA-70 13

The standard of review for matters concerning visitation rights is

whether the trial court committed an abuse of discretion. Booth v. Booth

(1989),

,

; Corple v. Corple

(1997),

,

. An abuse of discretion

connotes that the trial court's attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore (1983),

, 5

OBR 481,

. In order to further the child's best interest, the

trial court has the discretion to limit or restrict visitation rights. Jannetti v.

Nichol (May 12, 2000), Mahoning App. No. 97 CA239,

.

“This includes the power to restrict the time and place of visitation, to

determine the conditions under which visitation will take place and to deny

visitation rights altogether if visitation would not be in the best interests of

the child.”

Anderson v. Anderson,

,

,

(7th

Dist.), ¶18.

{¶42} When ordering a modification of parenting time or visitation, the trial court

must consider the enumerated factors in R.C. 3109.051(D) as well as any other factor in

the child's best interest. Braatz v. Braatz,

,

(1999).

{¶43} In her decision, the magistrate found,

The Magistrate finds Plaintiff's concerns about the Defendant's son

as a supervisor are reasonable. The Magistrate further finds that the

children's safety if left with the Defendant could not be ensured at this

time. This is in light of the fact that the Defendant's proposed supervisor is Licking County, Case No. 12-CA-70 14

his own son, an individual who the Magistrate finds would fail to provide

adequate supervision.

Aside from the Magistrate's concerns as to the Defendant's

proposed supervisor, the Magistrate finds it would not be in the best

interests of the minor children to allow the Defendant any time with them

at this point. The Magistrate finds that the Defendant does not seem to

appreciate the severity of his crimes or the very reasonable concerns the

Plaintiff has for the children's well being if subjected to the Defendant.

For example, the Plaintiff testified that during the Defendant's past

supervised parenting times, the Defendant would offer their six-year-old

daughter presents in exchange for her sucking her thumb in his presence.

The Magistrate finds that the Defendant did not deny having offered their

daughter gifts in exchange for the thumb sucking. The Magistrate finds

that it is completely inappropriate and downright creepy for a father to offer

his prepubescent daughter gifts in exchange for her allowing him to watch

her suck her thumb. The Magistrate finds this information to be incredibly

disturbing, especially in light of the Defendant's history of viewing child

pornography.

Further, the Plaintiff testified that the Defendant searched for

"incest" websites prior to his arrest.

Additionally, Terri Blankenship nka Engelman, a former girlfriend of

the Defendant, testified that the Defendant groomed her for sexual Licking County, Case No. 12-CA-70 15

exploits from the time she was very young. The Magistrate finds Ms.

Engelman's testimony on all issues to be credible.

Ms. Engelman testified that the Defendant took a special interest in

her from the time she was 9 or 10 years old. By the time she was 13 or 14,

the Defendant was complimenting [her] body, telling her she was a "true

woman" and "more mature" than other girls her age. By the time she was

15, the Defendant openly discussed his sexual attraction to her. The

Defendant purchased various adult toys for Ms. Engelman beginning

when she was 16. Such inappropriate behavior escalated until the

Defendant took Ms. Engelman's virginity.

Again, the Defendant did not contest the majority of Ms.

Engelman's testimony. Instead, he stated that he was attracted to younger

woman "just like most men are.”

The Magistrate finds that the Defendant does not seem to

understand how inappropriate and disturbing his behaviors are regarding

his own daughter and Ms. Engelman when she was a minor.

Pursuant to the parties' divorce decree, the Defendant was

prohibited from having any parenting time, and was further prohibited from

contacting the children via telephone. In consideration of the relevant and

credible evidence admitted into the record, coupled with the fact that the

Woodlands no longer offers supervised parenting facilities and the

supervisor suggested by the Defendant is inappropriate, the Magistrate

recommends the Court deny Defendant's request for parenting time. Licking County, Case No. 12-CA-70 16

The Magistrate makes this recommendation in consideration of the

Defendant's past with child pornography, the fact that the Defendant

apparently feels no guilt or remorse for the child pornography, or the

showering with his young daughter during his supposedly supervised time,

and/or his offer of gifts in exchange for the girl sucking her thumb. The

Magistrate does not find any compelling reason to allow the Defendant

time with the children, but many, many reasons to deny his request.

{¶44} In reaching her conclusion to deny Appellant parenting time with the two

minor children at this point in time, the magistrate specifically noted, “ORC 3109.051(D)

has guided the Magistrate.”

{¶45} The magistrate’s decision was based upon competent credible evidence.

The magistrate reviewed the appropriate statutes and articulated the basis for her

decision. As previously noted, the factual findings of the magistrate are deemed

established and may not be attacked on appeal because Appellant did not provide a

transcript for the trial court in support of his objections to the magistrate’s decision.

{¶46} Upon review, we find that Appellant has failed to prove the trial court

abuse its discretion by adoption of the magistrate's decision not to grant Appellant

parenting time with the two minor children.

Contempt

{¶47} R.C. 2705.02 provides in pertinent part, “A person guilty of any of the

following acts may be punished as for a contempt: (A) Disobedience of, or resistance to,

a lawful writ, process, order, rule, judgment, or command of a court or an officer [.]” Licking County, Case No. 12-CA-70 17

{¶48} “The purpose of civil contempt proceedings is to secure the dignity of the

courts and the uninterrupted and unimpeded administration of justice...the purpose of

sanctions in a case of civil contempt is to coerce the contemnor in order to obtain

compliance with the lawful orders of the court.” Windham Bank v. Tomaszczyk,

,

(1971). (Citations and internal quotation marks

omitted).

{¶49} The basis for the contempt action was the removal of property from the

marital residence by the Mother. The parties' divorce decree states that "the parties"

own the marital residence. The parties were awarded whatever personal property or

household goods were in their respective possession.

{¶50} At the hearing, Mother testified that she understood these terms of the

divorce decree to mean that since the house was jointly owned, they had equal right to

whatever was inside of the residence. At the time she removed the property from the

residence, Mother did not live in the residence, but neither did Appellant because he

was incarcerated.

{¶51} The magistrate found the Mother's interpretation of the divorce decree to

be a reasonable one. As such, the Magistrate found the Mother did not violate the terms

of the decree by removing items from the jointly titled marital home.

{¶52} Based upon consideration of the competent, credible and relevant

evidence adduced at hearing, the Magistrate found that the Appellant failed to prove by

clear and convincing evidence a prima facie case of civil contempt against the Mother.

{¶53} If the contempt charge is premised on a party's failure to obey an order of

the court, then the order must be clear and definite, unambiguous and not subject to Licking County, Case No. 12-CA-70 18

dual interpretations, and the contemnor must have knowledge of the order. Chilcote v.

Gleason Constr. Co., 5th Dist. No.

, 2002–Ohio–746. An order that is

indefinite and uncertain cannot be enforced in contempt. In re Ayer,

,

, 1183–1184(1st Dist. 1997). Because the language utilized in

the Final Decree of Divorce with regard to property left inside the residence is

ambiguous, the trial court did not abuse its discretion in finding that Mother was not in

contempt of court.

{¶54} Appellant's assignment of error and the arguments made with respect to

the contempt action are based entirely on factual determinations, which may not be

challenged on appeal as no transcript was provided to the trial court.

{¶55} Appellant’s second and third assignments of error are overruled in their

entirety.

IV.

{¶56} After reviewing Appellant’s brief including his contentions, we have

interpreted Appellant’s fourth assignments of error in the following manner: the

magistrate violated Appellant’s fifth and fourteenth amendment right to parent his child.

{¶57} Initially we note a deficiency in Appellant’s appellate brief; it does not

comply with App.R.16 (A)(7), which provides,

The appellant shall include in its brief, under the headings and in

the order indicated, all of the following: * * * An argument containing the

contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with Licking County, Case No. 12-CA-70 19

citations to the authorities, statutes, and parts of the record on which

appellant relies. The argument may be preceded by a summary.

{¶58} “If an argument exists that can support [an] assignment of error, it is not

this court's duty to root it out.” Thomas v. Harmon, 4th Dist. No. 08CA1 7, 2009-Ohio-

3299, ¶14, quoting State v. Carman, 8th Dist. No. 90512,

. “It is not

the function of this court to construct a foundation for [an appellant's] claims; failure to

comply with the rules governing practice in the appellate courts is a tactic which is

ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. No. 24184,

,

quoting Kremer v. Cox,

,

9th Dist. 1996).

Therefore, “[w]e may disregard any assignment of error that fails to present any

citations to case law or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc.,

4th Dist. No. 07CA4,

. See, also, App.R. 16(A)(7); App.R. 12(A)(2);

Albright v. Albright, 4th Dist. No. 06CA35,

; Tally v. Patrick, 11th

Dist. No. 2008-T-0072,

; Jarvis v. Stone, 9th Dist. No. 23904,

; State v. Paulsen, 4th Dist. Nos. 09CA15, 09CA16, 2010-Ohio-

806, ¶6; State v. Norman, 5th Dist. No. 2010-CA-22,

; State v.

Untied, 5th Dist. No. CT20060005,

, ¶141.

{¶59} According to App. R. 12(A)(2), "The court may disregard an assignment of

error presented for review if the party raising it fails to identify in the record the error on

which the assignment of error is based or fails to argue the assignment separately in the

brief, as required under App. R. 16(A).” An appellate court may rely upon App.R. 12(A)

in overruling or disregarding an assignment of error because of "the lack of briefing" on

the assignment of error. Hawley v. Ritley,

,

, 392- Licking County, Case No. 12-CA-70 20

393(1988); Abon, Ltd. v. Transcontinental Ins. Co., 5th Dist. No. 2004-CA-0029,

, ¶100; State v. Miller, 5th Dist. No. 04-COA-003,

, ¶41.

"Errors not treated in the brief will be regarded as having been abandoned by the party

who gave them birth.” Uncapher v. Baltimore & Ohio Rd. Co.,

,

(1933).

{¶60} In the case at bar, Appellant has wholly failed to provide any explanation

concerning the legal reasons in support of his argument that the actions of the

magistrate have violated his constitutional rights.

{¶61} Upon divorce, the court is called upon to intervene and to mediate

because of the breakdown in relationships that has occurred. The objective of R.C.

3109.051 is to promote familial relationships by acknowledging and protecting the

parents' rights and also the rights of the children. Andrews v. Andrews, 12th Dist. No.

88-03-035,

(Nov. 28, 1988). In Andrews, the court observed,

This legislation represents an attempt to promote harmony and to

maintain relationships as they would have been had the divorce not

occurred. In order to accomplish this, it is necessary to consider the rights

of children equally as important as those of the parents. Children are

entitled to protection from the law just as parents are. Boyer v. Boyer

(1976),

. Thus, there will be times when the rights of the

two are in competition such as when the issue of visitation arises.

***

The distinction made by R.C. 3109.05(B) is justifiable and proper as

it is necessary to allow children of divorced parents to have the same Licking County, Case No. 12-CA-70 21

chance at maintaining loving, nurturing relationships as those children

whose parents remain married. The state has a compelling interest in

assuring that the children of a broken marriage receive the attention and

care they would have received if the marriage and family had not been

drastically altered by the divorce action. See Hollingsworth v.

Hollingsworth (1986),

.

Therefore, we hold that R.C. 3109.05(B) is a constitutional statutory

means by which the state asserts a compelling governmental interest.

Id. at *2.

{¶62} The Supreme Court in Troxel v. Granville,

,

,

(2000), recognized that a parent's right to the care, custody, and

control of their children is perhaps the oldest fundamental right recognized by the

Court.

. It did not, however, hold such rights to be absolute and paramount

to all other rights. In fact, the plurality opinion in Troxel expressly refused to find specific

nonparent visitation statutes that infringe upon the parent's fundamental rights to be per

se unconstitutional. A parent's rights are always subject to the ultimate welfare of the

child. In re Cunningham,

,

(1979); In re B.L.,

supra, at ¶7. The record demonstrates that it is not in the children’s best interest for

Appellant to have visitation at this time. He was given a full evidentiary hearing before

his right to visitation was restricted.

{¶63} The state, by virtue of its police powers and the doctrine of parens patriae,

is invested with authority to regulate certain aspects of the family. In the instant case,

the state does not seek to compel Appellant to raise the children in a certain manner or Licking County, Case No. 12-CA-70 22

to divest him of his parental rights entirely; rather, the state has determined, after a

hearing and in accordance with specific statutory obligations, that it is in the best

interests of the child to have no visitation with Appellant at this time. Nothing prevents

Appellant from filing a motion to modify his rights in the trial court in the future.

{¶64} Appellant’s fourth assignment of error is overruled in its entirety.

V.

{¶65} After reviewing Appellant’s brief including his contentions, we have

interpreted Appellant’s fifth assignments of error in the following manner: the magistrate

was biased against him.

{¶66} Civ.R. 53(D)(6) provides that disqualification of a magistrate for bias or

other cause is within the discretion of the court. See also In re Disqualification of Wilson,

,

(1996). Accordingly, we will not reverse the

trial court's decision absent an abuse of discretion. Id.

{¶67} The terms “bias” or “prejudice” refer to “a hostile feeling or spirit of ill will

on the one hand, or undue friendship or favoritism on the other, toward one of the

litigants or his or her attorneys, with a formation of a fixed anticipatory judgment on the

part of a judge as distinguished from an open state of mind which will be governed by

the law and the facts.” 22 Ohio Jurisprudence 3d 203, Courts and Judges, Section

126.(1988).

{¶68} We note that Appellant does not contend that the trial court was also

biased, nor does he argue that the trial court failed to independently review the

magistrate's findings of fact and conclusions of law. We therefore presume that the trial

court independently reviewed the magistrate's decision and found no bias or prejudice Licking County, Case No. 12-CA-70 23

because it overruled Appellant's objections, adopted the magistrate's decision as its

own, and ordered it into law.

{¶69} In his appellate brief, Appellant cites to portions of the transcript of the

hearing before the magistrate. However, Appellant failed to file a copy of that transcript

for review by the trial court. Further, in the case at bar, Appellant did not file a motion

with the court to have the magistrate removed. As Appellant failed to follow the proper

procedures for disqualification, he has waived any error. Hawk v. Hawk, 5th Dist. No.

2002AP040024,

, ¶23.

{¶70} In this case, the magistrate made apparent efforts to act in all fairness

towards both parties. After reviewing the record, we find that no bias against Appellant

by the magistrate. Our review of the record establishes that the magistrate did allow

both sides to fully present testimony, and showed no evidence of bias.

{¶71} Appellant’s fifth assignment of error is overruled in its entirety.

VI.

{¶72} After reviewing Appellant’s brief including his contentions, we have

interpreted Appellant’s sixth assignments of error in the following manner: the decision

to deny Appellant visitation with the minor children violated double jeopardy principles.

{¶73} Appellant did not raise this argument in his Objections to the Magistrate’s

Decision.

{¶74} It is well established that “if a party fails to object to a conclusion of law or

finding of fact issued by a magistrate, pursuant to Civ.R. 53, the party is precluded from

raising the issues on appeal.” Koeller v. Koeller, 12th Dist. No. CA2006–04–009, 2007–

Ohio–2998, ¶15; Heath v. Heath, 3rd Dist. No. 14-99-44,

. Accordingly, Licking County, Case No. 12-CA-70 24

because he did not raise an objection based upon double jeopardy principals, Appellant

has waived that argument on appeal. Appellant would fair no better even if he had

raised a double jeopardy argument.

{¶75} The Double Jeopardy Clauses of the Ohio and United States Constitutions

prohibit, among other things, multiple criminal punishments for the same offense. State

v. Uskert,

,

(1999); Hudson v. United

States,

,

,

(1997). Double jeopardy can

be implicated by a prior civil sanction that is so punitive, in either purpose or effect, as to

negate its statutory remedial denomination. United States v. Ward,

, 248–

249,

,

(1980). See also State v. Martello,

, 2002–Ohio–6661,

.

In Hudson,

,

,

, the

United States Supreme Court reaffirmed the two-part test for determining

whether a particular penalty is a “criminal punishment” for double jeopardy

purposes that was set forth in United States v. Ward (1980),

,

248–249,

,

. Under this test, the first

question to be answered is “whether the legislature, ‘in establishing the

penalizing mechanism, indicated either expressly or impliedly a preference

for one label or the other.’” Hudson,

,

,

, quoting Ward,

,

,

. Second, even in those cases where the legislature has indicated an

intention to establish a civil penalty, the United States Supreme Court has

inquired further whether the statutory scheme was so punitive in purpose Licking County, Case No. 12-CA-70 25

or effect as to transform what was clearly intended to be a civil remedy

into a criminal penalty. Hudson,

,

,

; State v. Uskert (1999),

,

.

***

Because the answer under the first part of the Hudson test is that

the penalty in question is civil, we must proceed to the second prong of

the test, which requires us to ask whether [the statute] is so punitive in

purpose or effect that it amounts to a criminal penalty. “‘[O]nly the clearest

proof’ will suffice to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.” Hudson,

,

,

, quoting Ward,

,

,

.

In analyzing this second part of the test, the Hudson court stated

that it is helpful to refer to the seven guidelines set forth in Kennedy v.

Mendoza–Martinez (1963),

, 168–169,

,

, which include questions such as “[w]hether the sanction

involves an affirmative disability or restraint” and “whether it has

historically been regarded as a punishment.” Hudson, 522 U.S. at 99–100,

,

. In this case however, there is no need to

resort to the Mendoza–Martinez factors.

State v. Martello,

. Licking County, Case No. 12-CA-70 26

{¶76} In the case at bar, the decision of the trial court to deny Appellant visitation

does not extinguish Appellant’s parental rights. Nor does the decision prohibit Appellant

from seeking a modification of the order in the future. Double jeopardy principles are not

offended by the denial of a motion to modify parenting or visitation time. A decision

cornering whether to modify parenting time and is not regarded as a criminal

punishment.

{¶77} Appellant’s sixth assignment of error is overruled in its entirety.

VII.

{¶78} After reviewing Appellant’s brief including his contentions, we have

interpreted Appellant’s seventh assignment of error in the following manner: Appellant

was denied equal protection because the magistrate decided a similar case in a

different manner.

{¶79} It is well established that “if a party fails to object to a conclusion of law or

finding of fact issued by a magistrate, pursuant to Civ.R. 53, the party is precluded from

raising the issues on appeal.” Koeller v. Koeller, 12th Dist. No. CA2006–04–009, 2007–

Ohio–2998, ¶15; Heath v. Heath, 3rd Dist. No. 14-99-44,

. Accordingly,

because he did not raise an objection based upon equal protection principals, Appellant

has waived that argument on appeal. Appellant would fair no better even if he had

raised an equal protection argument.

{¶80} Appellant has submitted an unverified, unauthenticated decision of the

magistrate from a separate case. Appellant argues that the magistrate granted visitation

rights to the Father in that case even though the Father was convicted of importuning

and unlawful sexual contact with a minor. Licking County, Case No. 12-CA-70 27

{¶81} A trial court can take judicial notice of the court's docket. Helfrich v.

Madison, 5th Dist. No. 08-CA-150,

, ¶49, citing State v. Washington,

8th Dist Nos. 52676, 52677, 52678,

(Aug. 27, 1987). However, a court

does not have the authority to take judicial notice of the proceedings in another case,

including its own judgment entries.

citing State v. LaFever, 7th Dist. No. 02 BE 71,

; State v. Blaine, 4th Dist. No. 03CA9,

;

Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision,

,

(4th Dist. 1982); NorthPoint Properties, Inc. v. Petticord,

,

,

(8th Dist.), ¶16. The rationale for this

holding is that if a trial court takes notice of a prior proceeding, the appellate court

cannot review whether the trial court correctly interpreted the prior case because the

record of the prior case is not before the appellate court.

citing

;

LaFever, supra, ¶27; Buoscio, supra, ¶34.

{¶82} In State v. 1981 Dodge Ram Van,

,

(1988), the Supreme Court noted,

The general rule is that “an appellate court will not consider any

error which counsel for a party complaining of the trial court's judgment

could have called but did not call to the trial court's attention at a time

when such error could have been avoided or corrected by the trial court.”

State v. Childs (1968),

[

] [

], paragraph three of the syllabus; State v. Glaros (1960),

[

] [

], paragraph one of the syllabus;

State v. Lancaster (1971),

[

] [54 O.O.2d Licking County, Case No. 12-CA-70 28

222], paragraph one of the syllabus; State v. Williams (1977),

[

] [

]. Likewise, “[c]onstitutional

rights may be lost as finally as any others by a failure to assert them at the

proper time.” State v.

[14 Ohio St.2d], at 62 [

], citing State v. Davis (1964),

[

] [

]; State, ex rel. Specht, v. Bd. of Edn. (1981),

[

] [

], citing Clarington v. Althar

(1930),

[

], and Toledo v. Gfell (1958),

[

] [

]. [Footnote omitted.]

,

; See also, State v. Chandler,

,

,

; State v. Hughett, 5th Dist. No. 04 CAA

06051,

.

{¶83} As the United States Supreme Court observed in Puckett v. United States,

,

,

, (2009),

If an error is not properly preserved, appellate-court authority to

remedy the error (by reversing the judgment, for example, or ordering a

new trial) is strictly circumscribed. There is good reason for this; “anyone

familiar with the work of courts understands that errors are a constant in

the trial process, that most do not much matter, and that a reflexive

inclination by appellate courts to reverse because of unpreserved error

would be fatal.”

. (Citation omitted). Licking County, Case No. 12-CA-70 29

{¶84} Appellant made no equal protection argument in his objections to the

magistrate’s decision. Accordingly, the trial court had no opportunity to address this

argument. Nor was the record of the case to which Appellant alludes submitted to the

trial court with Appellant’s objections to the magistrate’s opinion. Accordingly, the trial

court in this case had no admissible evidence before it concerning the proceedings to

which the Appellant alludes. Appellant would fair no better had he raised an equal

protection argument in the trial court.

{¶85} “The Equal Protection Clauses require that all similarly situated individuals

be treated in a similar manner.” Columbia Gas Transm. Corp. v. Levin,

,

, 2008–Ohio–511, ¶ 90, citing McCrone v. Bank One Corp.,

,

, 2005–Ohio–6505, ¶ 6. See, also, City of Cleburne v.

Cleburne Living Ctr.,

,

,

(1985) (stating

that the Equal Protection clause “is essentially a direction that all persons similarly

situated should be treated alike”). In other words, “‘[t]he equal protection of law implies

that all litigants similarly situated may appeal to courts for both relief and defense under

like conditions, with like protection, and without discrimination.’” Conley v. Shearer,

,

, 1992–Ohio–133, quoting Sexton v. Barry,

(6th Cir 1956).

{¶86} However,

“[t]he equal protection clause does not reject the government's

ability to classify persons or ‘draw lines’ in the creation and application of

laws, but it does guarantee that those classifications will not be based

upon impermissible criteria or arbitrarily used to burden a group of Licking County, Case No. 12-CA-70 30

individuals. If the government classification relates to a proper

governmental purpose, then the classification will be upheld. Such a

classification does not violate the guarantee when it distinguishes persons

as ‘dissimilar’ upon some permissible basis in order to advance the

legitimate interests of society. Those who are treated less favorably by the

legislation are not denied equal protection of the law because they are not

similarly situated to those who receive the benefit of the legislative

classification.”

Clark v. Joseph,

,

, quoting Nowak & Rotunda,

Constitutional Law, 570, Section 14.2(4th Ed. 1991).

{¶87} Thus, an equal protection claim arises only in the context of an

unconstitutional classification made by a state, i.e., when similarly situated individuals

are treated differently. Conley v. Shearer,

, 288–289,

(1992). A law that operates identically on all people under like circumstances will not

give rise to an equal protection violation.

.

{¶88} The fact that trial courts may come to different conclusions in different

cases based upon different facts is not a violation of the Equal Protection Clause. In re

B.L., 10th Dist. No. 04AP-1108,

. The Supreme Court in Troxel v.

Granville,

,

,

(2000), recognized that a

parent's right to the care, custody, and control of their children is perhaps the oldest

fundamental right recognized by the Court.

. It did not, however, hold such

rights to be absolute and paramount to all other rights. In fact, the plurality opinion

in Troxel expressly refused to find specific nonparent visitation statutes that infringe Licking County, Case No. 12-CA-70 31

upon the parent's fundamental rights to be per se unconstitutional. A parent's rights are

always subject to the ultimate welfare of the child. In re Cunningham,

,

(1979); In re

. The record demonstrates that

it is not in the children’s best interest for Appellant to have visitation at this time.

{¶89} The state, by virtue of its police powers and the doctrine of parens patriae,

is invested with authority to regulate certain aspects of the family. In the instant case,

the state does not seek to compel Appellant to raise the children in a certain manner;

rather, the state has determined, after a hearing and in accordance with specific

statutory obligations, that it is in the best interests of the child to have no visitation with

Appellant at this time. Appellant has not been divested of his parental rights. Nothing

prevents Appellant from filing a motion to modify his rights in the trial court in the future. Licking County, Case No. 12-CA-70 32

{¶90} Appellant’s seventh assignment of error is overruled in its entirety.

{¶91} For all the foregoing reasons, the judgment of the Licking County Court of

Common Pleas, Domestic Relations Division is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER

WSG:clw 0614 [Cite as Hurst v. Hurst,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

WENDY M. HURST (RAMSEY) : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MARK E. HURST : : : Defendant-Appellant : CASE NO. 12-CA-70

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

the Licking County Court of Common Pleas, Domestic Relations Division is affirmed.

Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER