[Cite as Swedlow v. Riegler, 2013-Ohio-5562.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

RONALD M. SWEDLOW                                    C.A. No.      26710

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RADMILLA J. RIEGLER                                  COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   2004-09-3594

                                 DECISION AND JOURNAL ENTRY

Dated: December 18, 2013



        HENSAL, Judge.

        {¶1}    Plaintiff-Appellant, Ronald M. Swedlow, appeals from the judgment of the

Summit County Court of Common Pleas, Domestic Relations Division. For the reasons set forth

below, this Court affirms.

                                                I.

        {¶2}    Mr. Swedlow and Radmilla Riegler divorced in 2004. Both Mr. Swedlow and

Mrs. Riegler were named the residential parent of the parties’ minor child pursuant to a shared

parenting plan wherein the child lived with each parent on alternating weeks. Each parent also

had midweek parenting time with the child for two hours on the weeks that the child did not

reside with him or her. Due to the parties’ “nearly equal earnings” and the fact that the child

resided with each parent 50 percent of the time, neither parent was obligated to pay child

support. Both parents also had the right to make medical decisions for the child after consulting

with the other parent.
                                                   2


       {¶3}    In September 2011, Mrs. Riegler filed a motion to reallocate parental rights and

responsibilities and to modify the visitation schedule, child support order and tax dependency

exemption.    Mrs. Riegler sought, inter alia, to terminate the shared parenting plan, to be

designated as the sole residential custodian, and to require that Mr. Swedlow pay child support.

In a Magistrate’s Order dated February 17, 2012, the court scheduled the matter for a final

evidentiary hearing to be held on July 26, 2012.

       {¶4}    On July 10, 2012, while represented by counsel, Mr. Swedlow filed a pro se

motion to continue the evidentiary hearing on the basis that he needed time to seek different

counsel. The court denied the motion the same day it was filed. Thereafter, Mr. Swedlow’s

attorney sought the court’s permission to withdraw from the case, which was granted on July 20,

2012. On July 23, 2012, Mr. Swedlow filed a second motion to continue the evidentiary hearing,

which was also denied.

       {¶5}    The case proceeded to an evidentiary hearing before a magistrate over two

separate days. On September 18, 2012, a magistrate’s decision and judgment entry adopting the

decision was issued that: (1) modified the shared parenting plan to discontinue the alternating

week schedule during the school year, but ordered it to be used during the summer; (2) allowed

Mr. Swedlow overnight companionship time during the school year on the first three full

weekends of every month plus midweek companionship time during the fourth and fifth weeks

of the month; (3) gave Mrs. Riegler the right to make the final decision if the parties disagreed

about a medical decision involving the child; (4) ordered Mr. Swedlow to participate in anger

management counseling and to supervise the child’s interactions with neighborhood children

when she was in his care; (5) ordered that the child continue in counseling and be assessed for

ADHD; and (6) ordered Mr. Swedlow to pay child support in the amount of $186.74 per month,
                                                 3


pay 27% of any unreimbursed healthcare costs and allowed Mrs. Riegler to claim the child as a

dependent for income tax purposes.

       {¶6}    Mr. Swedlow filed timely objections to the magistrate’s decision and a

supplemental brief in support of his objections. While he filed a praecipe requesting that the

court reporter prepare a transcript of the evidentiary hearing, the record does not reflect that the

transcript was ever prepared and filed. Mr. Swedlow’s supplemental brief incorporated an

unsworn “[a]ffidavit” that alleged to set forth what transpired during the hearing in lieu of a

transcript. The trial court overruled Mr. Swedlow’s objections and found that the “[a]ffidavit”

was neither a proper affidavit nor the proper substitute for a transcript. Mr. Swedlow filed a

timely appeal of the judgment entry that overruled his objections and raises six assignments of

error. This Court combines several of Mr. Swedlow’s assignments of error to facilitate our

analysis.

                                                II.

                                   STANDARD OF REVIEW

       {¶7}    “This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion.” Young v. Young, 9th Dist. Summit No. 25640, 2011–Ohio–

4489, ¶ 5. An abuse of discretion “implies that the trial court’s attitude [was] unreasonable,

arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

“Although the trial court has discretion when finding facts and applying those facts to the law,

the trial court commits an error of law if it does not follow the law.” Foster v. Foster, 9th Dist.

Wayne No. 09CA0058, 2010–Ohio–4655, ¶ 6. Issues of law are reviewed de novo. Butler v.

Butler, 9th Dist. Summit No. 22087, 2004–Ohio–7164, ¶ 11.
                                                  4


                                     ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING FATHER A REASONABLE
       OPPORTUNITY TO OBTAIN NEW COUNSEL BEFORE EVIDENTIARY
       HEARINGS COMMENCED, DESPITE FATHER’S REALIZATION AND
       PLEAS THAT COUNSEL HAD FAILED TO PROVIDE EFFECTIVE
       REPRESENTATION.

       {¶8}    Mr. Swedlow argues that the trial court erred in not granting his motion for a

continuance of the evidentiary hearing to allow him time to obtain new counsel. This Court

disagrees.

       {¶9}    The decision to grant or deny a motion for a continuance is within the trial court’s

discretion. Carpenter v. Carpenter, 9th Dist. Medina No. 10CA0044-M, 2011-Ohio-2321, ¶ 7,

quoting Carrico v. Carrico, 9th Dist. Lorain No. 08CA009394, 2009-Ohio-668, ¶ 3.

       In determining whether the trial court abused its discretion by denying a motion
       for a continuance, this court must ‘apply a balancing test, weighing the trial
       court’s interest in controlling its own docket, including facilitating the efficient
       dispensation of justice, versus the potential prejudice to the moving party.’

Kocinski v. Kocinski, 9th Dist. Lorain No. 03CA008388, 2004-Ohio-4445, ¶ 10, quoting Burton

v. Burton, 132 Ohio App.3d 473, 476 (3rd Dist.1999). In evaluating whether the trial court

abused its discretion, this Court:

       should note * * * the length of the delay requested; whether other continuances
       have been requested and received; the inconvenience to litigants, witnesses,
       opposing counsel and the court; whether the requested delay is for legitimate
       reasons or whether it is dilatory, purposeful, or contrived; whether the defendant
       contributed to the circumstance which gives rise to the request for a continuance;
       and other relevant factors, depending on the unique facts of each case.

State v. Unger, 67 Ohio St.2d 65, 67-68 (1981).

       {¶10} These proceedings were initiated by Mrs. Riegler’s filing of a motion on

September 26, 2011. In an entry filed February 17, 2012, the matter was set for an evidentiary

hearing to be held on July 26, 2012. Mr. Swedlow filed his first pro se motion for a continuance
                                                5


on July 10, 2012; 16 days prior to the hearing and approximately two weeks after a settlement

conference was held. He sought a “reasonable amount of time” to obtain new counsel. The

magistrate denied the request without any explanation in an entry filed the same day as the

motion. This Court notes that Mr. Swedlow was represented by counsel at the time he filed his

first motion for a continuance. Mr. Swedlow’s counsel subsequently moved to withdraw as his

attorney due to the filing of the motion and the arguments contained therein. Three days before

the evidentiary hearing, Mr. Swedlow filed his second pro se motion for a continuance

requesting that the hearing be continued because the court permitted his prior counsel to

withdraw. The magistrate again denied the request without any explanation.

       {¶11} Balancing the trial court’s interest with the potential prejudice to Mr. Swedlow,

this Court’s review of the record does not indicate that the trial court abused its discretion in

denying Mr. Swedlow’s motions. There is no evidence in the record that Mr. Swedlow had

either sought or received any prior continuances.        With regard to the first motion for a

continuance, the record reflects that Mr. Swedlow was represented by counsel at the time it was

filed. His motion did not advise the court how long of a continuance he required. Despite

knowing over two weeks prior to the hearing that the matter would not be continued, there is no

evidence that Mr. Swedlow attempted to secure the services of alternate counsel and instead

chose to represent himself. He filed a second motion for a continuance just three days before

trial in a matter that was scheduled over five months earlier and was pending approximately ten

months. Finally, this Court notes that the evidentiary hearing occurred over two days; on July

26, 2012 and September 17, 2012. Mr. Swedlow thus had additional time between the two

hearing dates in which to obtain new counsel to represent him at the conclusion of the hearing.

There is no evidence in the record that he ever hired counsel, nor did he proffer or allege that he
                                                6


had attempted to do so. Based on the foregoing, the trial court did not abuse its discretion by

denying Mr. Swedlow’s motions for a continuance. His first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY FAILING TO SANCTION A
       REASONABLY EQUAL TIME AND OPPORTUNITY FOR FATHER TO
       QUESTION THE VERACITY OF MOTHER’S TESTIMONY VIA LIMITING
       HIS TIME ALLOWED FOR CROSS EXAMINATION.

       {¶12} Mr. Swedlow next argues that the magistrate unreasonably limited the time

scheduled for the evidentiary hearing, which did not afford him equal time to cross-examine Mrs.

Riegler, and forced him to cut short his testimony.        He also maintains that Mrs. Riegler

purposely drew out the proceedings so as to deprive him of an opportunity to present his case.

       {¶13}      Although he filed a praecipe directing that the court reporter prepare a

transcript, Mr. Swedlow failed to provide a transcript of the proceedings for the trial court to

review in ruling on his objections. He maintains that, due to his indigent status, he could not

afford to have a transcript prepared. Mr. Swedlow attempted to remedy this deficiency in the

trial court by incorporating an unsworn “affidavit” that purported to set forth what transpired

during the hearing.     The trial court found that the “affidavit” did not meet the formal

requirements of such a document and could not be substituted for a transcript. In ruling on his

objections, the trial court found that the magistrate’s findings of fact were correct and overruled

Mr. Swedlow’s objections. Mr. Swedlow filed a “Statement of the Evidence” pursuant to

Appellate Rule 9(C) in this Court, which was stricken from the record due to noncompliance

with the rule.1



       1
         Mr. Swedlow filed his statement of evidence pursuant to the version of App.R. 9(C) that
was effective July 1, 2011. App.R. 9(C) was subsequently amended effective July 1, 2013, and
provides further guidance about when a party may file a statement in lieu of a transcript.
                                                  7


       {¶14} In order to resolve Mr. Swedlow’s assignment of error, it is necessary for this

Court to have a transcript of the evidentiary hearing proceedings or an affidavit comporting with

Civil Rule 53(D)(3)(b)(iii) if a transcript is not available so as to ascertain whether the trial court

committed any error. “It is an appellant’s duty to ensure that the record, or the portion necessary

for review on appeal, is filed with the appellate court.” Shumate v. Shumate, 9th Dist. Lorain

No. 09CA009707, 2010-Ohio-5062, ¶ 6, citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,

19 (1988). See also App.R. 9(B)(1); App.R. 10(A); Loc.R. 5(A). “The duty to provide a

transcript for appellate review falls upon the appellant. This is necessarily so because an

appellant bears the burden of showing error by reference to matters in the record.” Shumate at ¶

6, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).

       {¶15} “Where the transcript of a hearing is necessary to resolve assignments of error,

but such transcript is missing from the record, the reviewing court has ‘no choice but to presume

the validity of the lower court’s proceedings, and affirm.’” Id. at ¶ 9, quoting Knapp at 199.

       When a party objects but does not provide the trial court with the transcripts
       necessary to review the objections, there are serious consequences for appellate
       review. In that situation, this Court’s review is ‘limited to determining whether
       the trial court abused its discretion in adopting, rejecting, or modifying the
       magistrate’s decision[.]’

Lakota v. Lakota, 9th Dist. Medina No. 10CA0122-M, 2012-Ohio-2555, ¶ 7, quoting Furlong v.

Davis, 9th Dist. Summit No. 24703, 2009-Ohio-6431, ¶ 30.

       {¶16} Given the limited record, this Court is unable to conclude that the trial court

abused its discretion in overruling Mr. Swedlow’s objection. His second assignment of error is

overruled.
                                                 8


                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN ITS ORDER CONFIRMING THE
       MAGISTRATE’S DECISION GRANTING FINAL SAY IN MEDICAL
       DECISION MAKING REGARDING THE MINOR CHILD TO THE MOTHER,
       AS THIS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
       PRODUCED DURING TRIAL, WHICH DEPICTS A PATTERN OF POOR
       DECISION MAKING IN THIS AREA BY THE MOTHER.

       {¶17} In Mr. Swedlow’s third assignment of error, he argues that the trial court abused

its discretion in modifying the shared parenting plan by giving Mrs. Riegler the right to make

any final medical decision for the child as such a finding was against the manifest weight of the

evidence. He does not, however, develop any argument on this point. Rather, he argues that he

was denied any meaningful opportunity to support his claims of error when the trial court refused

to consider the “affidavit” he included in his supplemental brief. We disagree.

       {¶18} Civil Rule 53(D)(3)(b)(iii) requires that a party objecting to a factual finding in a

magistrate’s decision must provide a transcript of the evidence or “an affidavit of that evidence if

a transcript is not available.” Mr. Swedlow does not dispute that his “affidavit” was neither

signed nor sworn in front of a notary public, but rather argues that the trial court’s action was

discriminatory against him as he is pro se and indigent. “By definition, an affidavit must be

‘confirmed by oath or affirmation of the party making it [and] taken before a person having

authority to administer [the] oath or affirmation.’” In re Disqualification of Pokorny, 74 Ohio

St.3d 1238, 1238 (1992), quoting Black’s Law Dictionary 54 (5th Ed.1979). A document that is

not sworn before an officer and that does not comply with all the legal requisites is not an

affidavit. Id. See also Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-

941, 2011-Ohio-3314, ¶ 12 (“An affidavit is a sworn statement, made under penalty of

perjury.”).
                                                9


       {¶19}    Accordingly, the trial court did not err in excluding Mr. Swedlow’s “affidavit”

as evidence. His third assignment of error is overruled.

                             FOURTH ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN SUMMARILY CONFIRMING
       MODIFICATION OF THE FATHER’S PARENTING TIME PER THE
       MAGISTRATE’S DECISION, DESPITE THIS DECISION’S RELIANCE ON A
       DETERMINATION THAT THE HARM CAUSED TO THE CHILD BY
       LIMITING HER TIME WITH HER FATHER IS OUTWEIGHED BY A
       POSITIVE ENVIRONMENT CHANGE, WITHOUT FIRST UTILIZING AN
       INDEPENDENT REVIEW TO REASONABLY ASSURE THAT THE
       MANIFEST WEIGHT OF THE EVIDENCE PRODUCED AT TRIAL
       ACTUALLY SUPPORTED SUCH A DETERMINATION.

       {¶20} Mr. Swedlow argues that the trial court abused its discretion in adopting the

magistrate’s finding that the harm likely to be caused by a change in the child’s environment was

outweighed by the advantages of a stable and consistent environment as such a finding was

against the manifest weight of the evidence. In addition, Mr. Swedlow argues that the trial court

failed to consider the factors set forth in Revised Code Section 3109.051(D) when it modified his

companionship time and that the trial court failed to conduct an independent review of the

magistrate’s application of the law to the facts. We disagree.

       Weight of the evidence concerns ‘the inclination of the greater amount of credible
       evidence, offered in a trial, to support one side of the issue rather than the other.
       It indicates clearly to the jury that the party having the burden of proof will be
       entitled to their verdict, if, on weighing the evidence in their minds, they shall
       find the greater amount of the credible evidence sustains the issue which is to be
       established before them. Weight is not a question of mathematics, but depends on
       its effect in inducing belief.’

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78

Ohio St.3d 380, 387 (1997). Thus, “manifest weight of the evidence” pertains to the burden of

persuasion. Id. at ¶ 19.
                                               10


       {¶21} Prior to these proceedings, the parties utilized a schedule wherein the child lived

with each parent on alternating weeks. The trial court modified the shared parenting plan so that

the alternating week schedule was only followed during the summer and the child resided with

Mrs. Riegler during the week when school was in session.             Mr. Swedlow was given

companionship time with the child during the school year the first three full weekends of every

month from Friday after school until Sunday at 7:00 p.m. plus mid-week companionship time

during the remaining weeks of the month.

       {¶22} The magistrate’s decision indicates that both parents testified along with the

guardian ad litem, the Family Court Services evaluator, the child’s teacher and several other

witnesses. Mr. Swedlow argues that the testimony of the teacher and the guardian ad litem in

particular support his contention that the child would be harmed by the change in the shared

parenting plan, and that, in light of their testimony, the trial court’s decision is against the

manifest weight of the evidence.

       {¶23} Given the limited record, this Court does not conclude that the trial court abused

its discretion in overruling Mr. Swedlow’s objection and adopting the magistrate’s finding that

any harm that would result to the child as a result of the change in environment was outweighed

by the advantages. “Pursuant to App.R. 9(B), an appellant who wishes to assert that a finding or

conclusion is * * * against the manifest weight of the evidence shall include in the record ‘a

transcript of proceedings that includes all evidence relevant to the findings or conclusion.’”

Technical Constr. Specialties, Inc. v. New Era Builders, Inc., 9th Dist. Summit No. 25776, 2012-

Ohio-1328, ¶ 9. As stated earlier, Mr. Swedlow has failed to provide this Court with a transcript

of the evidentiary hearing or with a statement of the evidence pursuant to Appellate Rule 9(C).

Because the record is devoid of the evidence necessary to decide the portion of Mr. Swedlow’s
                                                  11


assignment of error concerning the manifest weight of the evidence, this Court “has no choice

but to presume the validity of the lower court’s proceedings, and affirm.” Id. at ¶ 11, quoting

Knapp, 61 Ohio St.2d at 199.

       {¶24} With regard to Mr. Swedlow’s argument that the trial court failed to consider the

factors set forth in Revised Code Section 3109.051(D), this Court notes that Mr. Swedlow did

not raise this argument in his objections to the magistrate’s decision and raises it for the first time

on appeal. Failure to specifically raise an argument in an objection to a magistrate’s decision,

results in a forfeiture of the argument on appeal unless the party can establish plain error. Johns,

2013-Ohio-557 at ¶ 17. “[T]he plain error doctrine is not favored and may be applied only in the

extremely rare case involving exceptional circumstances where error, to which no objection was

made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the

judicial process * * *.” Goldfuss v. Davidson, 79 Ohio St.3d 116, syllabus (1997). Mr. Swedlow

has failed to demonstrate that the trial court committed plain error by not considering the factors

provided in Revised Code 3109.051(D). Further, this statute does not apply to proceedings, such

as the present case, wherein the court has ordered a shared parenting plan. See R.C. 3109.051(A)

(“If a divorce * * * proceeding involves a child and if the court has not issued a shared parenting

decree, the court * * * shall make a just and reasonable order or decree permitting each parent

who is not the residential parent to have parenting time * * *.”)

       {¶25} Finally, with regard to Mr. Swedlow’s contention that the trial court failed to

conduct an independent review of the magistrate’s decision, he appears to argue that the alleged

error was evidenced by the court’s failure to apply the factors set forth in Revised Code

3109.051(D). Civil Rule 53(D)(4)(d) provides that:

       If one or more objections to a magistrate’s decision are timely filed, the court
       shall rule on those objections. In ruling on objections, the court shall undertake an
                                                 12


       independent review as to the objected matters to ascertain that the magistrate has
       properly determined the factual issues and appropriately applied the law.

“In other words, Civ.R. 53 does not authorize a trial court to summarily overrule objections as a

sanction without conducting the independent review of the magistrate’s decision that is

warranted under the circumstances.” Lakota v. Lakota, 9th Dist. Medina No. 10CA0122-M,

2012-Ohio-2555, ¶ 15.

       {¶26} The trial court in this case stated in its judgment entry that it had reviewed Mr.

Swedlow’s objections, Mrs. Riegler’s responses and other documents in the file. The court

specifically classified Mr. Swedlow’s objections as pertaining to factual findings and determined

that the Magistrate’s findings of fact were correct due to his failure to file a transcript. As stated

above, Mr. Swedlow did not specifically object to the magistrate’s decision on the basis of the

failure to consider the factors set forth in Revised Code 3109.051(D). The magistrate’s decision

instead considered the factors set forth in Revised Code 3109.04(F)(1) in finding that it was in

the child’s best interest to modify the shared parenting plan. The trial court clearly reviewed and

agreed with the magistrate’s reasoning, although it did not explicitly state as much, when it

overruled Mr. Swedlow’s objections and ordered that the plan be modified. As further evidence

that the court undertook an independent review of the magistrate’s decision, the trial court added

a finding that Mr. Swedlow was voluntarily unemployed. This finding was not included in the

magistrate’s decision. Based on the foregoing, Mr. Swedlow has not demonstrated that the trial

court failed to conduct an independent review of the magistrate’s decision as required by Civil

Rule 53(D)(4)(d). His fourth assignment of error is overruled.
                                               13


                              FIFTH ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN IMPUTING MINIMUM WAGE INCOME TO
       FATHER FOR CHILD SUPPORT PURPOSES WITHOUT FIRST[]
       EXPLICITLY FINDING HIM VOLUNTARILY UNEMPLOYED OR
       UNDEREMPLOYED.

                              SIXTH ASSIGNMENT OF ERROR

       THE   COURT’S      EVENTUAL FINDING  OF   VOLUNTARY
       UNEMPLOYMENT IS UNSUPPORTED BY ANY EVIDENCE, AND IS IN
       FACT, AGAINST THE MANIFEST WEIGHT OF [THE] EVIDENCE
       PROVIDED AT TRIAL.

       {¶27} Mr. Swedlow argues that the magistrate erred in imputing income to him for

purposes of calculating his child support obligation without first finding him voluntarily

unemployed or underemployed. He additionally maintains that the trial court’s finding that he

was voluntarily unemployed is against the manifest weight of the evidence. Mr. Swedlow also

argues that Revised Code 3119.05(I) precludes the imputation of income and a finding that he is

voluntarily unemployed because he receives means-tested public assistance benefits. This Court

disagrees.

       {¶28} “This Court has consistently held that a trial court must expressly find a parent to

be voluntarily unemployed or underemployed before imputing income to that parent.” Morrow

v. Becker, 9th Dist. Medina No. 11CA0066-M, 2012-Ohio-3875, ¶ 36. Mr. Swedlow is correct

when he states that the magistrate’s decision failed to find him either voluntarily unemployed or

underemployed.     However, the trial court did include a finding that he was voluntarily

unemployed in its judgment entry overruling his objections. Because “[a]ny claim of trial court

error must be based on the actions of the trial court, not the magistrate’s findings or proposed

decision[,]” Mr. Swedlow’s argument that the court failed to find him voluntarily unemployed or
                                                14


underemployed is without merit. Mealey v. Mealey, 9th Dist. Wayne No. 95CA0093, 1996 WL

233491, *2 (May 8, 1996).

       {¶29} While Mr. Swedlow’s argument that the trial court’s finding that he was

voluntarily unemployed is couched in terms of challenging the manifest weight of the evidence,

the substance of his argument suggests that the trial court lacked any evidence from which it

could conclude that he was voluntarily unemployed. As such, this Court will analyze his

argument using the sufficiency standard.

       {¶30} The Ohio Supreme Court recently clarified that “[t]he sufficiency of the evidence

is quantitatively and qualitatively different from the weight of the evidence.” Eastley, 132 Ohio

St.3d 328, 2012–Ohio–2179, at paragraph two of the syllabus. “‘Sufficiency’ is a term of art

meaning that legal standard which is applied to determine * * * whether evidence is legally

sufficient to support [a finding] as a matter of law.” Raykov v. Raykov, 9th Dist. Summit No.

26107, 2012–Ohio–2611, ¶ 8, quoting Thompkins, 78 Ohio St.3d at 386. It is, therefore, a test of

adequacy. Thompkins at 386.

       {¶31} The trial court did not err in accepting the factual findings contained in the

magistrate’s decision as true since Mr. Swedlow did not provide a transcript to support his

argument. City of Cuyahoga Falls v. Eslinger, 9th Dist. Summit No. 21951, 2004-Ohio-4953, ¶

6. The magistrate’s decision included a factual finding that Mr. Swedlow was unemployed for

three years, previously worked in sales, received a paralegal degree in 2010, and received cash

assistance that required him to work 30 hours per week. Civil Rule 53(D)(4)(b) allows a trial

court to “adopt or reject a magistrate’s decision in whole or in part, with or without

modification” regardless of whether or not objections are timely filed. The practical effect of the

trial court’s decision in finding that Mr. Swedlow was voluntarily unemployed, regardless of the
                                                15


fact that it expressly “overruled and dismissed” Mr. Swedlow’s objections, was to sustain his

objection on that point and modify the magistrate’s decision accordingly. Given the limited

record before this Court, we cannot say that the trial court abused its discretion in modifying the

magistrate’s decision by finding that Mr. Swedlow was voluntarily unemployed as there was

sufficient evidence from which it could make such a conclusion.

       {¶32}      Finally, Mr. Swedlow’s argument that the trial court could not impute income

to him or find him voluntarily unemployed due to the fact that he received means-tested public

assistance is without merit. Revised Code Section 3119.05(I)(1) provides that, “[u]nless it would

be unjust or inappropriate and therefore not in the best interests of the child,” a parent who

receives means-tested public assistance benefits, such as “cash assistance payments under the

Ohio works first program established under Chapter 5107 of the Revised Code,” may not be

determined to be voluntarily unemployed and shall not have income imputed to him. Mr.

Swedlow’s objections represented that he received means-tested assistance, but the magistrate’s

decision does not make that specific factual finding. The magistrate’s decision instead found

that he “is currently receiving cash assistance.” There is no evidence from the limited record

before us that the assistance Mr. Swedlow received is means-tested or that it is “cash assistance

payments under the Ohio works first program” as stated in Revised Code Section 3119.05(I)(1).

       {¶33} Further, Revised Code Section 3119.05(I) does not prohibit a finding that the

obligor is voluntarily unemployed or underemployed, and, thus, the imputation of income to a

child support obligor, if it is just, appropriate and in the best interests of the child. The

magistrate’s decision adopted by the court did include a legal conclusion that the child support

award was just, appropriate and in the best interest of the child. Accordingly, Mr. Swedlow’s

fifth and sixth assignments of error are overruled.
                                                16


                                                III.

       {¶34} Mr. Swedlow’s assignments of error are overruled, and the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.
                                          17


APPEARANCES:

RONALD M. SWEDLOW, pro se, Appellant.

LESLIE S. GRASKE, Attorney at Law, for Appellee.
