Kess v. Kess

• Decision Date: 10 April 2018
• Docket Number: Case No. 17 CAF 05 0029,Case No. 15 CAF 10 0076
• Citation: 2018 Ohio 1370
• Parties: JAMES C. KESS Plaintiff-Appellant v. ROBERTA J. KESS Defendant-Appellee
• Court: Ohio Court of Appeals

2018 Ohio 1370

JAMES C. KESS Plaintiff-Appellant v. ROBERTA J. KESS Defendant-Appellee

Case No. 17 CAF 05 0029

Case No. 15 CAF 10 0076

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

April 10, 2018

JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Domestic Relations Division, Case No. 09 DR A 11 0551

JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

APPEARANCES:

For Plaintiff-Appellant:

NICHOLAS W. YAEGER

580 South High St., Suite 200

Columbus, OH 43215

For Defendant-Appellee:

MICHAEL A. PARTLOW

112 S. Water St., Suite C

Kent, OH 44240

Delaney, J.

{¶1} Plaintiff-Appellant James C. Kess appeals multiple judgment entries of the Delaware County Court of Common Pleas, Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellant James C. Kess ("Husband") and Defendant-Appellee Roberta J. Kess ("Wife") were married on June 19, 1987. Three children were born as issue of the marriage.

{¶3} Husband filed a complaint for divorce on November 12, 2009. Wife filed her answer and counterclaim on November 17, 2009.

{¶4} The matter proceeded to trial before the magistrate on June 13, 2014 and June 16, 2014. The magistrate issued a Magistrate's Decision on August 27, 2015. The Magistrate's Decision included a header stating, "FINDINGS OF FACT and CONCLUSIONS OF LAW," which was followed by 52 paragraphs reciting evidence adduced at trial and the magistrate's recommendations including the parties' earning capacities, property distributions, spousal support, and child support. The Findings of Fact and Conclusions of Law were followed by 39 paragraphs of the magistrate's orders.

{¶5} Relevant to this appeal, the magistrate reviewed the parties' marital and separate assets. During the pendency of the divorce proceedings, Husband filed a Chapter 7 bankruptcy petition. The marital residence was sold by the Trustee. The sale net proceeds were approximately $64,609.20. Wife received $17,500, Husband received $12,500, and Husband's bankruptcy estate received $34,359.20. The magistrate further reviewed the parties' personal property, insurance policies, financial assets, and debts as presented at the trial. The magistrate found Husband was entitled to $105,832.20 in assets and Wife was entitled to $86,761.00 in assets. The magistrate distributed all marital debt to Wife in the amount of $57,668.00. The magistrate recommended Husband pay Wife a distributive award in the amount of $38,369.60 to equalize the distribution to $67,462.60 for each party.

{¶6} Also relevant to this appeal, evidence was presented as to the parties' earning capacities. At the time of the trial, Husband was 51 years old. Husband was employed at Angelo's Pizza, a restaurant owned by his brother, as a dining room manager earning $20 per hour or $41,600 per year. He attended Ohio State University for two years. Husband has been employed as a fast food cook, construction superintendent, building equipment and supply sales representative, and food service manager. A vocational expert testified Husband's earning capacity was between $49,945 and $60,278. The magistrate reviewed Husband's reported wages from 2009 to 2013.

{¶7} Wife was 46 years old at the time of the trial. Wife was a high school graduate. Her highest earned income was approximately $40,000 as an offset printer. She stopped working full-time in 2002, but worked some part-time jobs at department stores. Wife had medical issues which limited her employability. A vocational expert testified Wife was capable of earning $15,000 to $21,000 per year.

{¶8} The magistrate imputed income to Husband in the amount of $49,945.00 and Wife in the amount of $15,000. The magistrate recommended Husband pay spousal support in the amount of $750 per month for a period of eight years. The magistrate further recommended Husband pay child support in the amount of $769.33 per month.

{¶9} On September 2, 2015, Husband filed a Request for Findings of Fact and Conclusions of Law.

{¶10} On September 8, 2015, the trial court denied Husband's request for findings of fact and conclusions of law. The trial court found the magistrate issued a 20-page decision that included 52 findings of fact and conclusions of law. For that reason, the trial court denied the request.

{¶11} The trial court adopted the Magistrate's Decision on September 11, 2015.

{¶12} Husband attempted to file objections to the Magistrate's Decision with the Delaware County Clerk of Courts on September 22, 2015. The Clerk of Courts rejected Husband's Objections for filing because it determined the objections were untimely. Husband filed a motion for leave to file supplemental objections on September 22, 2015. On September 25, 2015, the trial court denied the motion for leave because it found there were no objections to supplement.

{¶13} A transcript of the proceedings was filed on September 28, 2015. The record does not reflect when Husband requested the transcript.

{¶14} On October 7, 2015, Husband filed an appeal of the September 11, 2015 judgment entry in Case No. 15 CAF 10 0076. Husband also filed a Writ of Mandamus to order the Delaware County Clerk of Courts to accept and file his Objections to the Magistrate's Decision. We stayed Case No 15 CAF 10 0076 during the pendency of the Writ of Mandamus. On January 26, 2017, we ordered the Delaware County Clerk of Courts to accept Husband's Objections for filing. We held it was the purview of the trial court to determine whether Husband's Objections were timely filed. Husband's Objections were filed and backdated as of September 22, 2015. State ex rel. Kess v. Antonoplos, 5th Dist. Delaware No. 16CAD030010, 2017-Ohio-305. On March 10, 2017, this Court remanded the matter to the trial court for the purpose of determining the timeliness of Husband's Objections and whether to consider the Objections.

{¶15} Upon the remand of the matter to the trial court, the parties filed briefs on the issue of whether Husband's Objections were timely filed. On April 4, 2017, the trial court ruled Husband's Objections were not timely filed.

{¶16} Husband filed a notice of appeal of the trial court's decision in Case No. 17 CAF 05 0029. This Court consolidated Case Nos. 15 CAF 10 0076 and 17 CAF 05 0029 for appeal.

ASSIGNMENTS OF ERROR

{¶17} Husband raises three Assignments of Error:

{¶18} "I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANT'S REQUEST FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW AND BY FINDING THAT THE APPELLANT'S OBJECTIONS WERE NOT TIMELY FILED AS PROVIDED IN OHIO CIVIL RULE 53(B).

{¶19} "II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVISABLE [SIC] ERROR BY ADOPTING THE PROPERTY DIVISION CONTAINED WITHIN THE MAGISTRATE'S DECISION AS THE MAGISTRATE'S DECISION WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS CONTRARY TO OHIO REVISED CODE §3105.171.

{¶20} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN THE IMPUTATION OF INCOME AND CALCULATION OF BOTH CHILD AND SPOUSAL SUPPORT."

ANALYSIS

I. Timeliness of Objections to Magistrate's Decision

{¶21} Husband argues in his first Assignment of Error that the trial court erred when it denied his request for findings of fact and conclusions of law and then found his objections to the Magistrate's Decision were not timely filed.

{¶22} Civ.R. 53(D) states, in relevant part, as follows:

(3) Magistrate's Decision; Objections to Magistrate's Decision.

(a) Magistrate's decision.

(i) When required. Subject to the terms of the relevant reference, a magistrate shall prepare a magistrate's decision respecting any matter referred under Civ.R. 53(D)(1).

(ii) Findings of fact and conclusions of law. Subject to the terms of the relevant reference, a magistrate's decision may be general unless findings of fact and conclusions of law are timely requested by a party or otherwise required by law. A request for findings of fact and conclusions of law shall be made before the entry of a magistrate's decision or within seven days after the filing of a magistrate's decision. If a request for findings of fact and conclusions of law is timely made, the magistrate may require any or all of the parties to submit proposed findings of fact and conclusions of law.

(iii) Form; filing, and service of magistrate's decision. A magistrate's decision shall be in writing, identified as a magistrate's decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate's decision shall indicate conspicuously that 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 timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

(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.

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

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