[Cite as Schmidt v. Worthington, 2011-Ohio-4088.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ANGELA (WORTHINGTON) SCHMIDT                           JUDGES:
                                                       Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                             Hon. William B. Hoffman, J.
                                                       Hon. John W. Wise, J.
-vs-
                                                       Case No. 11 CA 1
WESLEY G. WORTHINGTON

        Defendant-Appellant                            OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from the Court of Common
                                                    Pleas, Case No. 98 DV 24555


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             August 17, 2011



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

PHILLIP S. PHILLIPS                                 JACQUELINE D. TRESL
GOTTLIEB, JOHNSTON, BEAM                            1500 Cowden Road
& DAL PONTE                                         New Concord, Ohio 43762
320 Main Street, P. O. Box 190
Zanesville, Ohio 43702
Perry County, Case No. 11 CA 1                                                          2

Wise, J.

      {¶1}   Appellant Wesley G. Worthington appeals the decision of the Court of

Common Pleas, Perry County, finding him in contempt of court upon a post-decree

motion filed by Appellee Angela J. Worthington nka Schmidt, his former spouse. The

relevant facts leading to this appeal are as follows.

      {¶2}   Appellant and appellee were divorced in Perry County in 1998. On

February 28, 2007, the parties executed and filed an agreed post-decree judgment

entry, which, inter alia, ordered appellee to continue to provide health insurance for the

parties’ three children, with all uninsured medical expenses to be paid 100% by

appellant.

      {¶3}   On February 4, 2010, appellee filed a motion to show cause, alleging that

appellant had failed to pay certain medical bills for one of the parties’ children. The

matter proceeded to an evidentiary hearing on July 30, 2010. The magistrate issued a

finding of contempt on October 15, 2010, and recommended thirty days in jail,

suspended on condition of appellant making a lump sum payment of a sum certain

within 90 days of the entry.

      {¶4}   On October 29, 2010, appellant filed objections to the magistrate’s

decision. Furthermore, on December 3, 2010, appellant filed a motion for new trial

under Civ.R. 59.

      {¶5}   On December 16, 2010, the trial court issued a judgment entry overruling

the objections to the magistrate’s decision, adopting the decision, and denying

appellant’s motion for a new trial.
Perry County, Case No. 11 CA 1                                                      3


      {¶6}   On January 11, 2011, appellant filed a notice of appeal. He herein raises

the following four Assignments of Error:

      {¶7}   “I. THE TRIAL COURT ERRED WHEN IT FAILED TO INCLUDE IN ITS

FINDINGS OF FACT AND CONCLUSIONS OF LAW WHETHER APPELLANT HAD

HEALTH       INSURANCE     COVERAGE        FOR   THE   DAUGHTER,       WHICH    WAS

ABSOLUTELY ESSENTIAL TO WHETHER APPELLANT WAS LIABLE.

      {¶8}   “II.    THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION FOR A NEW TRIAL AFTER THE TRIAL COURT LEARNED THAT AT ALL

TIMES APPELLANT DID HAVE HEALTH INSURANCE COVERAGE FOR THE

DAUGHTER.

      {¶9}   “III.   THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION FOR A NEW TRIAL WHEN APPELLANT TESTIFIED, VIA AFFIDAVIT, THAT

THE ONE AND ONLY TIME APPELLANT MET WITH HIS COURT-APPOINTED

ATTORNEY WAS FIVE MINUTES PRIOR TO TRIAL AND THAT THE COURT-

APPOINTED ATTORNEY NEVER ASKED APPELLANT IF THE DAUGHTER WAS

COVERED UNDER HIS HEALTH INSURANCE POLICY NOR DID ATTORNEY ASK

APPELLANT FOR A COPY OF HIS HEALTH INSURANCE COVERAGE, WHICH

MEANT APPELLANT PROCEEDED TO A FULL HEARING WITHOUT HIS MOST

CRUCIAL PIECE OF EVIDENCE, DUE TO INEFFECTIVE ASSISTANCE OF

COUNSEL.

      {¶10} “IV. THE TRIAL COURT ERRED HELD (SIC) THAT THE MOTION FOR

NEW TRIAL WAS DENIED BECAUSE THE MOTION WAS NOT SUBMITTED

TIMELY.”
Perry County, Case No. 11 CA 1                                                          4


                                            I.

      {¶11} In his First Assignment of Error, appellant contends the trial court erred in

failing to include a recitation of whether appellant had health insurance coverage for

the parties’ daughter in its findings of fact and conclusions of law. We disagree.

      {¶12} In the case sub judice, appellant, who was represented by a different

attorney prior to December 3, 2010, did not request findings of fact and conclusions of

law from the magistrate, although the magistrate did issue some on her own initiative.

Where an appellant fails to request findings of fact and conclusions of law, he or she

cannot complain on appeal as to a lack of specificity of such findings. See Lehmkuhl v.

Vermillion, Knox App.No. 05 CA 24, 2006-Ohio-3701, ¶ 22.

      {¶13} Accordingly, we find appellant’s argument must fail.

      {¶14} Appellant’s First Assignment of Error is overruled.

                                            II.

      {¶15} In his Second Assignment of Error, appellant contends the trial court erred

in denying his motion for a new trial, based on appellant providing, subsequent to the

contempt finding, apparent written documentation of his insurance coverage of the

child. We disagree.

      {¶16} Appellant’s motion for a new trial appears to have relied on Civ.R.

59(A)(8), which states:

      {¶17} “A new trial may be granted to all or any of the parties and on all or part of

the issues upon any of the following grounds: *** (8) Newly discovered evidence,

material for the party applying, which with reasonable diligence he could not have

discovered and produced at trial.”
Perry County, Case No. 11 CA 1                                                              5


      {¶18} The decision to grant or deny a motion for new trial rests in the sound

discretion of the trial court, and will not be reversed on appeal absent an abuse of

discretion. Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 312, 649 N.E.2d

1219. As the moving party, appellant had the burden of demonstrating that the

evidence was actually newly discovered, that he exercised due diligence, and that the

evidence is material, such that a new trial would probably produce a different result.

See Adeen v. Ohio Department of Commerce, Cuyahoga App.No. 87135, 2006-Ohio-

3604, ¶ 15.

      {¶19} Upon review of the record before us, we are unpersuaded that the trial

court’s decision to deny a new trial in this instance constituted an abuse of discretion.

      {¶20} Appellant’s Second Assignment of Error is overruled.

                                            III.

      {¶21} In his Third Assignment of Error, appellant contends the trial court erred in

denying his motion for a new trial on the basis of ineffective assistance of trial counsel.

      {¶22} In the context of civil cases, a party may not obtain a new trial based upon

an assertion that his or her attorney was ineffective. Sexton v. Haines, Delaware

App.No. 2010–CA–090067, 2011-Ohio-3531, ¶ 16, citing Goldfuss v. Davidson, 79

Ohio St.3d 116, 122, 679 N.E.2d 1099, 1997–Ohio–401. The Tenth District Court of

Appeals, in Fidler v. Fidler, Franklin App.No. 08AP-284, 2008-Ohio-4688, refused to

allow an appellant challenging a contempt finding to “superimpose issues of effective

assistance of counsel in a civil context where the constitutional protections afforded in

criminal proceedings have not been incorporated.” Id. at ¶ 16. We therefore find
Perry County, Case No. 11 CA 1                                                          6


appellant’s challenge to the trial court’s denial of his new trial motion in the case sub

judice on the basis of ineffective assistance to be without merit.

      {¶23} Appellant’s Third Assignment of Error is overruled.

                                            IV.

      {¶24} In his Fourth Assignment of Error, appellant contends the trial court erred

in finding that his motion for new trial was untimely.

      {¶25} Based on our previous conclusions herein, even if the trial court

erroneously determined that appellant’s Civ.R. 59 motion was filed outside of time

requirements, said motion was properly denied on the merits. As an appellate court, we

are not required to issue an advisory or merely academic ruling. See, e.g., In re

Merryman/Wilson Children, Stark App.Nos. 2004 CA 00056 and 2004 CA 00071, 2004-

Ohio-3174, ¶ 59, citing State v. Bistricky (1990), 66 Ohio App.3d 395, 584 N.E.2d 75.

      {¶26} Appellant’s Fourth Assignment of Error is therefore overruled.

      {¶27} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Perry County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.

                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                 JUDGES
JWW/d 0729
Perry County, Case No. 11 CA 1                                                7


             IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




ANGELA (WORTHINGTON) SCHMIDT                :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
WESLEY G. WORTHINGTON                       :
                                            :
       Defendant-Appellant                  :       Case No. 11 CA 1




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.

       Costs to be assessed to appellant.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                             JUDGES
