Wade v. Wade
| Decision Date | 12 August 1996 |
| Docket Number | No. 95-L-189,95-L-189 |
| Citation | 113 Ohio App.3d 414,680 N.E.2d 1305 |
| Parties | WADE, Appellant, v. WADE, Appellee. |
| Court | Ohio Court of Appeals |
Brooke F. Kocab, Cleveland, for appellant.
Frost & Seman and Merrie Frost, Mentor, for appellee.
This is an appeal from the Lake County Court of Common Pleas, Domestic Relations Division. Appellant, Sharon E. Wade, appeals from a judgment that granted appellee, James A. Wade's motion to modify child support.
Appellant and appellee were married on August 13, 1977, and were granted a divorce on February 10, 1988. One child, Christina, was born during the marriage on September 1, 1981. Additionally, appellee adopted appellant's child, Carrie, who was emancipated at the time of the pertinent proceedings in this matter. On September 30, 1993, the trial court modified the original decree and ordered appellee to pay $500 monthly in child support for his daughter, as well as $66.33 monthly towards his arrearages.
On August 12, 1994, appellee filed a motion with the trial court to modify his child support obligation due to changed circumstances, namely, that he was earning significantly less money than he had previously made. The Lake County Child Support Enforcement Agency filed a motion to show cause for failure to pay child support against appellee on August 19, 1994.
It appears from the record in this case that appellee was terminated in August 1993 from his job with Metal Improvements Company, where he had served as a division manager. Appellee claimed that he had sought work, but was unsuccessful in his efforts. In February 1994, appellee started his own company, and currently is self-employed as a consultant in his area of expertise. His income while self-employed, after business expenses, was reported to be approximately $1,000 monthly.
Following protracted discovery, the matter was heard before a referee on February 23, 1995, March 16, 1995, and April 27, 1995. Also under consideration were three motions filed by appellant for attorney fees.
The referee issued her findings of fact and recommendations on June 28, 1995, overruling both appellee's motion to modify due to changed circumstances and appellant's motion for attorney fees for failure of proof, while also finding appellee in contempt for failure to pay his child support obligation.
Appellant filed a single objection to the report on July 12, 1995, claiming that the referee erred by not granting her three motions for attorney fees. Appellee then filed his twenty-eight objections on July 14, 1995. A hearing on these motions was held before the trial court on August 14, 1995. On November 16, 1995, the trial court issued its eighteen-page judgment entry overruling all of the objections, with the exception of those by appellee regarding his motion to modify. Appellant now timely appeals, raising the following as error:
In appellant's first assignment of error, she contends that the trial court erred when it granted appellee's objection concerning the modification of his child support obligation. For the following reasons, this contention has merit.
As the trial court stated in its judgment entry:
In this case, appellee filed three partial transcripts with his objections to the referee's report. Appellant did not submit any transcript in support of her objection or provide a full transcript of any of the proceedings that were omitted by appellee for the court's attention. Appellant now states that the trial court committed reversible error when it considered transcripts that violated Civ.R. 53(E)(6). 1 Civ.R. 53(E)(6) states, in part:
"The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that objection with a copy of all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee if no transcript is available." (Emphasis added.) See, also, amended Civ.R. 53(E)(3)(b).
Appellant contends that appellee's failure to include a complete transcript precluded the trial court from deciding this case differently than the referee had. This view is partially correct.
First, appellant is correct that even a cursory review of the partial transcripts, the only transcripts properly submitted in this matter, clearly reveals that appellee did not submit the relevant portions to allow the trial court to conduct a review of his objections. This failure was duly noted by the trial court, but was not addressed appropriately. Where the failure to provide the relevant portions of the transcript or suitable alternative is clear on the face of the submissions, the trial court cannot then address the merits of that factual objection because the objecting party, whether through inadvertence or bad faith, has not provided all of the materials needed for the review of that objection. It was appellee's duty to provide all of the relevant materials needed for the trial court to properly address his objections. It is disingenuous for a party to submit only those portions of the evidence presented that supports his position, while omitting all evidence that was contrary to his position.
We are aware that the trial court is required to undertake an independent analysis to determine whether the referee's recommendations should be adopted pursuant to Civ.R. 53, regardless of whether any party filed any objections or related transcripts. However, absent a transcript or appropriate affidavit as provided in the rule, a trial court is limited to an examination of the referee's conclusions of law and recommendations, in light of the accompanying findings of fact only unless the trial court elects to hold further hearings.
Thus, the fact that appellee filed incomplete transcripts would have been irrelevant in this matter had the trial court critically examined the referee's findings of fact in an independent review, and reached a different conclusion than the referee. "Regardless of whether a transcript has been filed, the trial judge always has the authority to determine if the referee's findings of fact are sufficient to support the conclusions of law drawn therefrom [and] come to a different legal conclusion if that conclusion is supported by the referee's findings of fact." (Emphasis sic.) Hearn v. Broadwater (Aug. 4, 1995), 105 Ohio App.3d 586, 588, 664 N.E.2d 971, 972.
However, in this case, the trial court did not limit itself to an independent examination of the referee's report while reaching a different legal conclusion. Rather, the trial court addressed appellee's factual objections, which were supported by obviously deficient and inadequate partial transcripts.
The decision to adopt, reject or modify a...
To continue reading
Request your trial
-
Heitmeyer v. Arthur
...needed for the review of that objection." ’ " (Emphasis sic.) Id. , quoting Nieto at ¶ 15, quoting Wade v. Wade , 113 Ohio App.3d 414, 418, 680 N.E.2d 1305 (11th Dist.1996). {¶13} " ‘ "On appeal of a judgment rendered without the benefit of a transcript or affidavit, an appellate court only......
-
Donofrio v. Whitman
...of discretion. See Arrow Fin. Servs. v. Kuzniak, 7th Dist. No. 06 MA 133, 2007-Ohio-2191, 2007 WL 1334546, citing Wade v. Wade (1996), 113 Ohio App.3d 414, 419, 680 N.E.2d 1305; see also Marchel v. Marchel, 160 Ohio App.3d 240, 2005-Ohio-1499, 826 N.E.2d 887, at ¶ 7. “ ‘ “[A]buse of discret......
-
In re Maxwell, 2006 Ohio 527 (OH 2/6/2006)
...unless the decision was an abuse of discretion." Knox v. Knox, Gallia App. No. 03CA13, 2004-Ohio-428, citing Wade v. Wade (1996), 113 Ohio App.3d 414, 419, 680 N.E.2d 1305. An abuse of discretion is more than an error of judgment, but instead connotes a decision that is unreasonable, arbitr......
-
Long v. Noah's Lost Ark, Inc.
...to adopt, reject, or modify a magistrate's decision, appellate courts examine the case for abuse of discretion. Wade v. Wade (1996), 113 Ohio App.3d 414, 419, 680 N.E.2d 1305. However, when reviewing a trial court's decision to grant summary judgment, appellate courts review the case de nov......