[Cite as J.S. v. T.S.,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

J.S. : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 16CA18 : T.S. : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Domestic Relations Division, Case No. 13DC08-0145

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 22, 2017

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

MARY L. RANNEY DONALD GALLICK 1 South Main Street 190 North Union Street #102 P.O. Box 484 Akron, OH 44304 Utica, OH 43080 Knox County, Case No. 16CA18 2

Delaney, P.J.

{¶1} Defendant-Appellant T.S. appeals the June 22, 2016 judgment entry of the

Knox County Court of Common Pleas, Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Defendant-Appellant T.S. (“Mother”) and Plaintiff-Appellee J.S. (“Father”)

were divorced on October 30, 2015. There were two minor children born as issue of the

marriage. The parties entered into a shared parenting plan, where Mother was the

residential parent. Father paid child support to Mother.

{¶3} Father filed a motion in contempt on May 11, 2015 after Mother failed to

return the children to Father on the date required by the shared parenting plan. Mother

also kept the older child out of school for two days without explanation. On May 11, 2015,

Father also filed a motion for modification or termination of the shared parenting plan.

Father requested that he be named the residential parent and legal custodian of the

children.

{¶4} The trial court appointed a Guardian ad litem for the children.

{¶5} Father filed a second motion for contempt on January 20, 2016. Father

argued Mother denied his parenting time the week of January 18, 2016 in contravention

of the terms of the shared parenting plan.

{¶6} The GAL filed his recommendation on April 29, 2016. The GAL

recommended the trial court terminate the shared parenting plan and name Father the

residential parent and legal custodian of the children.

{¶7} A hearing was held before the magistrate on May 11, 2016. Knox County, Case No. 16CA18 3

{¶8} The magistrate issued her proposed decision on June 3, 2016. The

magistrate determined the evidence demonstrated there had been a change of

circumstances and it was in the best interests of the children that the trial court terminate

the shared parenting plan pursuant to R.C. 3109.04(E)(1)(a). The magistrate

recommended the trial court name Father as the residential parent and legal custodian.

{¶9} The magistrate used the child support computation worksheet to

recommend that Mother pay Father child support. In making the income calculation, the

magistrate found Mother was unemployed due to a work injury and had a pending

workers’ compensation claim. The magistrate found little testimony about Mother’s

inability to work. The magistrate imputed income to Mother in the amount of $16,848 and

found Mother received $1,800 in workers’ compensation.

{¶10} Father was able to provide private health insurance coverage for the

children. He was named the health insurance obligor. The magistrate ordered Mother to

pay 20% and Father to pay 80% of the “costs of the health care needs of the child that

exceed the amount of cash medical support ordered to be paid, if any, when private health

insurance coverage is not available or is not being provided in accordance with the

support order OR of the uninsured health care costs or co-payment or deductible costs

required under the health insurance policy, contract, or plan that covers the child, when

private health insurance coverage is being provided in accordance with this support

order.” The magistrate further ordered that Father be reimbursed for out-of-pocket

medical, optical, hospital, dental, or prescription expenses paid for the children.

{¶11} Finally, the magistrate considered Father’s motion for contempt filed on

January 20, 2016. In the motion, Father argued Mother unreasonably denied Father Knox County, Case No. 16CA18 4

parenting time the week of January 18, 2016. Mother contended she was justified in

keeping the children from Father due to claims of sexual abuse made by one of the

children. The magistrate determined that upon investigation by law enforcement and

medical personnel, the sexual abuse claims were unsubstantiated. The magistrate found

Mother in contempt and ordered her to pay a $250 fine to purge her contempt.

{¶12} The parties did not file objections to the magistrate’s decision. No party filed

a transcript of the magistrate’s hearing with the trial court.

{¶13} By judgment entry filed on June 22, 2016, the trial court adopted the

magistrate’s decision.

{¶14} It is from this judgment entry Mother now appeals.

ASSIGNMENTS OF ERROR

{¶15} Mother raises three Assignments of Error:

{¶16} “I. THE TRIAL COURT ERRED BY CONSIDERING WORKER’S

COMPENSATION INCOME THAT APPELLANT WAS NOT AND IS NOT ACTUALLY

RECEIVING.

{¶17} “II. THE TRIAL COURT ERRED BY ORDERING APPELLANT TO PAY

TWENTY-PERCENT OF HEALTH CARE COSTS FOR THE CHILDREN, AND ALSO

ORDERING HER TO REIMBURSE APPELLEE FOR HIS EIGHTY-PERCENT OF THE

CHILDREN’S HEALTH CARE COSTS.

{¶18} “III. AS THE TRIAL COURT’S FINDING OF CONTEMPT IS NOT

SUPPORTED BY THE RECORD NOR DOES THE JOURNAL ENTRY PROVIDE ANY

LEGAL REASONING FOR THE FINDING, IT SHOULD BE VACATED OR REMANDED

FOR A DE NOVO HEARING.” Knox County, Case No. 16CA18 5

ANALYSIS

Failure to Timely Object and File Transcript in the Trial Court

{¶19} Before we address Mother’s Assignments of Error, we note Mother failed to

file timely objections to the magistrate’s decision of June 3, 2016 and she did not file a

transcript of the magistrate’s hearing for the trial court’s review. Mother filed a transcript

of the magistrate’s hearing in this Court with her appeal.

{¶20} Civ. R. 53(D) states in pertinent part:

(3) Magistrate's decision; objections to magistrate's decision

***

(b) Objections to magistrate's decision

***

(i) Time for filing. 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 as permitted

by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party

may also file objections not later than ten days after the first objections are

filed. If a party makes a timely request for findings of fact and conclusions

of law, the time for filing objections begins to run when the magistrate files

a decision that includes findings of fact and conclusions of law.

(ii) Specificity of objection. An objection to a magistrate's decision shall be

specific and state with particularity all grounds for objection. Knox County, Case No. 16CA18 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.

(iv) Waiver of right to assign adoption by court as error on appeal. Except

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, whether or not

specifically designated as a finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as

required by Civ.R. 53(D)(3)(b).

{¶21} Mother failed to file objections to the proposed magistrate’s decision

pursuant to Civ.R. 53(D)(3)(b). Accordingly, we find Mother cannot assign as error on

appeal the trial court’s adoption of any factual finding or legal conclusion pursuant to

Civ.R. 53(D)(3)(b)(iv). We note that authority exists in Ohio law for the proposition that Knox County, Case No. 16CA18 7

Mother’s failure to object to the magistrate's decision does not bar appellate review of

“plain error.” In re B.H., 5th Dist. Fairfield No. 14-CA-53,

, ¶¶ 56-57 citing

R.G. Real Estate Holding, Inc. v. Wagner, 2nd Dist. Montgomery App. No. 16737,

(Apr. 24, 1998); In re Ortego, 5th Dist. Tuscarawas No.1999AP05003,

(Mar. 8, 2000); Batsch v. Tress, 11th Dist. Portage No.2000–P–0022, 2001–

Ohio–4343. However, the Supreme Court has cautioned against the over application of

plain error analysis,

The plain error doctrine originated as a criminal law concept. In applying the

doctrine of plain error in a civil case, reviewing courts must proceed with the

utmost caution, limiting the doctrine strictly to those extremely rare cases

where exceptional circumstances require its application to prevent a

manifest miscarriage of justice, and where the error complained of, if left

uncorrected, would have a material adverse effect on the character of, and

public confidence in, judicial proceedings. Schade, 70 Ohio St.2d at 209,

24 O.O.3d at 317, 436 N.E.2d at 1003; LeFort v. Century 21–Maitland

Realty Co. (1987),

,

; Cleveland

Elec. Illum. Co. v. Astorhurst Land Co. (1985),

, 18

OBR 322, 327–328,

.

Goldfuss v. Davidson,

, 1997–Ohio–401,

. The

plain error doctrine has been used to analyze whether the trial court erred in granting a

change in custody. Ford v. Ford, 5th Dist. Tuscarawas No. 2012 AP 03 0025, 2012-Ohio-

5454, ¶ 21. Knox County, Case No. 16CA18 8

{¶22} Further, this Court has held, “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.” Murray

v. Miller, 5th Dist. Richland No. 15CA02, 2015–Ohio–3726, ¶ 35; Doane v. Doane, 5th

Dist. Guernsey No. 00CA21,

(May 2, 2001); State v. Leite, 5th Dist.

Tuscarawas No.1999AP090054,

(Apr. 11, 2000); Fogress v. McKee,

5th Dist. Licking No. 99CA15,

(Aug. 11, 1999); and Strunk v. Strunk,

5th Dist. Muskingum No. CT96–0015,

(Nov. 27, 1996). When a party

objecting to a magistrate's decision has failed to provide the trial court with the evidence

and documents by which the trial court could make a finding independent of the report,

the appellate court is precluded from considering the transcript of the hearing submitted

with the appellate record. Green Tree Servicing, L.L.C. v. St. John, 5th Dist. Stark

No.2013 CA 00092, 2015–Ohio–1111, ¶ 18 citing State ex rel. Duncan v. Chippewa Twp.

Trustees,

, 1995–Ohio–272,

.

{¶23} Accordingly, we review Mother's assignments of error only to determine

whether the trial court committed plain error in calculating Mother’s income, division of

out-of-pocket health care costs, and Mother’s contempt.

I. Mother’s Income

{¶24} Mother argues in her first Assignment of Error that the trial court erred in

calculating Mother’s income for child support purposes. In Booth v. Booth,

,

(1989), the Ohio Supreme Court determined the abuse-of-

discretion standard is the appropriate standard of review in matters concerning child

support. In order to find an abuse of discretion, we must determine that the trial court's Knox County, Case No. 16CA18 9

decision was unreasonable, arbitrary, or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore,

,

(1983).

Furthermore, as an appellate court, we are not the trier of fact. Our role is to determine

whether there is relevant, competent, and credible evidence upon which the factfinder

could base his or her judgment. Tennant v. Martin–Auer,

, 2010–

Ohio–3489,

(5th Dist.), citing Cross Truck v. Jeffries, 5th Dist. No.

CA–5758,

(Feb. 10, 1982).

{¶25} The original shared parenting plan ordered Father to pay Mother child

support. Upon termination of the shared parenting plan pursuant to R.C. 3109.04(E), the

magistrate named Father as the residential parent and legal custodian. The magistrate

recalculated the parties’ child support obligations to reflect Father as the primary

caregiver. In Paragraph 19 of the June 3, 2016 magistrate’s proposed decision, the

magistrate stated:

Wife testified that she is unemployed due to a work injury. There was little

testimony regarding wife’s current workman’s compensation case except

that she has received one check in the amount of $1,800. There was also

little to no testimony about the specifics of wife’s inability to work. The Court

finds that imputing income to wife in the amount of $16,848 is appropriate.

{¶26} Mother argues the trial court abused its discretion when it considered

Mother’s award from workers’ compensation case as income. Mother contends her

testimony at the hearing demonstrated the workers’ compensation award was

speculative. In support of her argument, Mother refers the court to R.C. 3105.18. That

statute, however, governs the award of spousal support. Upon our limited review of the Knox County, Case No. 16CA18 10

record, we find no plain error for the trial court to consider Mother’s workers’

compensation award. The magistrate’s finding of fact as to Mother’s workers’

compensation benefit is established and cannot be attacked on appeal.

{¶27} Mother contends the trial court also abused its discretion when it imputed

income to Mother in order to calculate child support. The statutory child support

computation worksheet includes space for the assessment of each parent's income,

which is defined, for a parent who is unemployed or underemployed, as “the sum of the

gross income of the parent and any potential income of the parent.” R.C.

3119.01(C)(5)(b). “In deciding if an individual is voluntarily under employed or

unemployed, the court must determine not only whether the change was voluntary, but

also whether it was made with due regard to obligor's income-producing abilities and his

or her duty to provide for the continuing needs of the child.” G.P. v. L.M., 5th Dist. Morrow

No. 16CA0005,

, ¶ 42 quoting Weisgarber v. Weisgarber, 5th Dist. Stark

No.2015CA00158, 2016–Ohio–676, ¶ 25 quoting Farrell v. Farrell, 5th Dist. Licking

No.2008–CA–0080, 2009–Ohio–1341, ¶ 20. The decision to impute income to a parent

is within the trial court's sound discretion.

citing Rock v. Cabral,

(1993); Blakemore.

{¶28} The magistrate found Mother presented little evidence to explain why

Mother was unable to work. Based on the lack of evidence as to the voluntary or

involuntary nature of Mother’s unemployment, the magistrate imputed a minimum-wage

income to Mother. We find no abuse of discretion or plain error in the trial court adopting

the magistrate’s calculation of Mother’s income.

{¶29} Mother’s first Assignment of Error is overruled. Knox County, Case No. 16CA18 11

II. Health Care Costs

{¶30} Mother contends in her second Assignment of Error that the trial court

abused its discretion by ordering Mother to contribute to the children’s health care

expenses based on Mother’s limited income. The trial court ordered Mother to pay 20%

and Father to pay 80% of the children’s uninsured health care costs.

{¶31} Father refers the Court to the child support computation worksheet which

calculated the parties’ combined annual income to be $89,871.62. Father’s percentage

of the combined income was 79.63%. Mother’s percentage of the combined income was

20.37%. Father argues the trial court’s division of the uninsured health care costs is in

proportion to the parties’ income percentages. Reviewing the child support computation

worksheet, we find the trial court’s division of uninsured health care costs is reasonable

and not an abuse of discretion.

{¶32} Mother next argues the trial court erred when it stated Father was to be

reimbursed for out-of-pocket medical and/or other healthcare expenses paid for the

children. We find that pursuant to R.C. 3119.32(B), the trial court is required to include

the referred to language in a child support order.

{¶33} Mother’s second Assignment of Error is overruled.

III. Mother’s Contempt

{¶34} Mother argues in her final Assignment of Error that the trial court erred when

it found her in contempt for her failure to follow the terms of the shared parenting plan

when she denied Father parenting time.

{¶35} On January 20, 2016, Father filed a motion for contempt alleging Mother

denied Father’s parenting time the week of January 18, 2016. Mother alleged Father was Knox County, Case No. 16CA18 12

sexually abusing the minor children and was therefore justified in withholding the children

from Father.

{¶36} In Paragraph 22 of the proposed magistrate’s decision, the magistrate

stated:

Wife presented no evidence to substantiate her claim. Taking the totality of

wife’s actions regarding the allegations, the in-chambers child interview, the

guardian ad litem report, and the results of the investigation of the abuse

allegations the Court finds that wife failed to prove a justified defense.

{¶37} An appellate court's standard of review of a trial court's contempt finding is

abuse of discretion. Anderson v. Cameron, 5th Dist. Stark No.2008CA00042, 2009–

Ohio–601, ¶ 12, citing State ex rel. Celebrezze v. Gibbs,

,

(1991). In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore,

,

(1983).

{¶38} Mother contends the trial court made no factual findings or referred to case

law to support its finding of contempt. In making her decision that Mother was in contempt,

the magistrate cited to the in-camera interview, the guardian ad litem report, and the

results of the investigation into the abuse allegations. We do not have the benefit of the

hearing transcript, but we have reviewed the items in the trial court case file referring the

matter. Upon our review, we find no abuse of discretion for trial court to find Mother’s

claim against Father was unsubstantiated.

{¶39} Mother’s third Assignment of Error is overruled. Knox County, Case No. 16CA18 13

CONCLUSION

{¶40} The judgment of the Knox County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, P.J.,

Wise, John, J. and

Wise, Earle, J., concur.