Hurst v. Hurst, Case No. 12-CA-70

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtW. Scott Gwin
Citation2013 Ohio 2674
PartiesWENDY M. HURST (RAMSEY) Plaintiff-Appellee v. MARK E. HURST Defendant-Appellant
Docket NumberCase No. 12-CA-70
Decision Date24 June 2013

2013 Ohio 2674

WENDY M. HURST (RAMSEY) Plaintiff-Appellee
MARK E. HURST Defendant-Appellant

Case No. 12-CA-70



Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.



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

JUDGMENT: Affirmed


For Plaintiff-Appellee


For Defendant-Appellant


Page 2

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,

Page 3

2009-Ohio-983. 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, 2012-Ohio-6074, ¶4 (vacating Appellants classification as a sexually oriented offender pursuant to State v. Williams, 129 Ohio St.3d 344, 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.

Page 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,








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, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant

Page 5

where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

{¶19} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(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, 54 Ohio St.2d 402, 377 N.E.2d 500(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, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. 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:

Page 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, 2011-Ohio-6111; State v. Leite, 5th Dist. No.1999AP090054, 2000 WL 502819(April 11, 2000); Fogress v. McKee 5th Dist. No. 99CA15, 1999 WL 668580(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, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254, 1995-Ohio-272.

Page 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, 23 Ohio St.3d 56, 491 N.E. 2d 311(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. Linton, supra.

{¶25} In Robinson v. Custom...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT