[Cite as Rodriguez v. Porras, 2018-Ohio-4694.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JOSHUA RODRIGUEZ                                 :   JUDGES:
                                                 :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                      :   Hon. Craig R. Baldwin, J.
                                                 :   Hon. Earle E. Wise, Jr., J.
-vs-                                             :
                                                 :
TAMARA PORRAS (NKA BALES)                        :   Case No. 18 CAF 04 0032
                                                 :
        Defendant-Appellee                       :   OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Domestic Relations Division,
                                                     Case No. 10 DR A 03 0156


JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 20, 2018




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

JOSHUA RODRIGUEZ, Pro Se                             TAMARA BALES, Pro Se
2918 Blossom Avenue                                  11735 US Route 62
Columbus, OH 43231                                   Killbuck, OH 44637

                                                     BRIAN G. JONES
                                                     52 North Sandusky Street
                                                     Delaware, OH 43015
Delaware County, Case No. 18 CAF 04 0032                                                 2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, Joshua Rodriguez, appeals the March 20, 2018 decision

of the Court of Common Pleas of Delaware County, Ohio, Domestic Relations Division,

denying his objections to a magistrate's decision. Defendant-Appellee is Tamara Porras

(nka Bales).

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} Appellant and appellee were divorced on January 25, 2011. Appellee was

named legal custodian and residential parent of the parties' two children.

       {¶ 3} On September 16, 2016, appellant filed a motion to reallocate parental

rights and responsibilities. Hearings before a magistrate were held on September 11, 12,

13, and 14, 2017. In a lengthy decision filed January 30, 2018, the magistrate denied the

motion, finding no change of circumstances, a reallocation of parental rights and

responsibilities was not in the children's best interests, and the harm likely to be caused

by a change of environment would not be outweighed by the advantages of a change of

environment to the children.

       {¶ 4} Appellant filed objections. By judgment entry filed March 20, 2018, the trial

court denied the objections. The trial court noted appellant did not file a transcript of the

hearings before the magistrate, but filed an affidavit of evidence. The trial court approved

and adopted the magistrate's decision.

       {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments or error are as follows:
Delaware County, Case No. 18 CAF 04 0032                           3


                                       I

      {¶ 6} "PLAINTIFF CHALLENGES SEVERAL BUT NOT ALL FINDINGS OF

FACT IN MAGISTRATE[']S DECISION FILED JANUARY 30, 2018 AND ADOPTED AS

A FINAL APPEALABLE ORDER ON MARCH 16, (SIC) 2018."

                                      II

      {¶ 7} "THE TRIAL COURT ERRED AND ABUSED IT'S (SIC) DISCRETION IN

OVERRULING ALL CONTEMPT, AND IN NOT ISSUING JUST PENALTIES AGAINST

DEFENDANT FOR EACH VIOLATION PER LOCAL RULE."

                                      III

      {¶ 8} "THE TRIAL COURT ERRED AND ABUSED IT'S (SIC) DISCRETION

WHEN IT CIN (SIC) GRANTED DEFENDANT'S MOTION FOR CONTEMPT."

                                      IV

      {¶ 9} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

CONCLUDED THAT A CHANGE IN PARENTAL RIGHTS AND RESPONSIBILITIES

DUE TO A CHANGE IN CIRCUMSTANCE IS NOT IN THE BEST INTEREST OF THE

CHILDREN, AND THE HARM WOULD NOT BE OUTWEIGHED BY THE BENEFITS

PURSUANT TO R.C. 3109.04(F)."

                                      V

      {¶ 10} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

CONCLUDED THAT DEFENDANT IS NOT RESPONSIBLE FOR ATTORNEY'S FEES

INCURRED ON PLAINTIFF-APPELLANT."
Delaware County, Case No. 18 CAF 04 0032                                                  4


                                              I

       {¶ 11} In his first assignment of error, appellant challenges several findings of fact

in the magistrate's decision.

       {¶ 12} As noted by the trial court, appellant did not file a transcript of the hearings

before the magistrate for the trial court's review. Pursuant to Civ.R. 53(D)(3)(b)(iii),

objections to the magistrate's factual findings must be supported by a transcript: "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."

       {¶ 13} According to the trial court's judgment entry, appellant stated he could not

afford to produce a copy of the written transcript. As found by the trial court, appellant

"failed to show how the transcript was not available. As the transcript was available, a

copy of the transcript was required to be filed." We agree with the trial court's analysis.

       {¶ 14} This court has held, " '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.' " J.S. v. T.S., 5th

Dist. Knox No. 16CA18, 2017-Ohio-1042, ¶ 22, quoting Murray v. Miller, 5th Dist. Richland

No. 15CA02, 2015-Ohio-3726, ¶ 35. As explained by the Tenth District in Bahgat v.

Kissling, 10th Dist. Franklin No. 17AP-641, 2018-Ohio-2317, ¶ 21:



              Without a transcript of the hearing, a trial court is required to accept

       all the magistrate's findings of fact as true and only review the legal
Delaware County, Case No. 18 CAF 04 0032                                                5

       conclusions drawn from those facts.         JPMorgan Chase Bank, N.A. v.

       Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 14, fn. 1; Bayview

       Loan Servicing at ¶ 12. "The same is true of this court's review on appeal."

       Liggins at ¶ 14, fn. 1; Bayview Loan Servicing at ¶ 12 ("Without a transcript,

       an appellant cannot demonstrate error with respect to factual findings, and

       thus, the appellate court must presume the regularity of the proceedings

       and that the facts were correctly interpreted.").



       {¶ 15} Upon review, we find appellant is precluded from challenging the

magistrate's findings of fact under Civ.R. 53(D)(3)(a)(iii).

       {¶ 16} Assignment of Error I is denied.

                                              II

       {¶ 17} In his second assignment of error, appellant claims the trial court erred and

abused its discretion in denying all contempt and in not issuing just penalties for each

violation. We disagree.

       {¶ 18} Our standard of review of a trial court's finding of contempt is abuse of

discretion. State ex. rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991).

In order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶ 19} Prior to the magistrate's hearing, appellant filed two contempt motions

against appellee, one on September 16, 2016, and one on December 29, 2016.
Delaware County, Case No. 18 CAF 04 0032                                                  6


        {¶ 20} As outlined by the magistrate in his decision at No. 104, the September

motion alleged appellee:



        denied him visitation on numerous occasions, including his normal time plus

        certain calamity school days as ordered, allowed her boyfriend to transport

        the children, violated the right of first refusal, failed to transport [A.] to

        softball games and practices, failed to provide Plaintiff with all information

        related to extra-curricular activities and school functions, prohibited the

        children from    bringing their cellphones to        Plaintiff's   house   and

        communicating with Plaintiff, failed to give Plaintiff notice of doctor's

        appointments and other medical issues involving the children, failed to

        maintain counseling for the children, etc.



        {¶ 21} At No. 105, the magistrate found in examining the evidence, appellee

"willfully" denied appellant's parenting time, and found her to be in contempt for doing so

"as a litigation leverage to negotiate a different schedule." At No. 106, the magistrate

found appellee was not in contempt for denying appellant visitation on school calamity

days.

        {¶ 22} In his December motion, appellant alleged appellee "should be found in

contempt for failing to transport [A.] for visitation and for speaking negatively about him in

front of the children." Magistrate's Decision at No. 107. The magistrate analyzed the

totality of the evidence and found appellee should not be found in contempt on these

issues. Magistrate's Decision at No. 108.
Delaware County, Case No. 18 CAF 04 0032                                                   7


       {¶ 23} For the contempt finding under the September motion, the magistrate stated

appellee could purge the contempt by paying appellant $500, and ordered appellee to

pay appellant $500 for attorney fees. Magistrate's Decision at E.

       {¶ 24} In its judgment entry, the trial court found the magistrate did not err in ruling

on the contempt motions. The trial court found any objection to the September motion

was moot "given that the magistrate ultimately found Mother in contempt on that Motion."

As for the December motion, the trial court found "the magistrate's findings lead one to

appropriately conclude that Mother should not be found in contempt. Mother attempted

to comply with the Order and it was eventually done as indicated in the Decision."

       {¶ 25} We concur with the trial court's analysis. The magistrate did not deny all

contempt, but in fact found appellant in contempt under the September motion and

imposed a penalty for willfully denying parenting time and exhibiting "a pattern of unilateral

decision-making and exercise of absolute dominion and control over Plaintiff's parenting

time." Magistrate's Decision at No. 105. The magistrate addressed the allegations

regarding right of first refusal, transportation issues, providing all information related to

extra-curricular activities and school functions, communications with appellant, and failure

to maintain counseling for the children. Magistrate's Decision at Nos. 34, 38, 39, 46, 48,

59, 62, 73. Without a transcript, we are unable to determine if appellant presented any

evidence regarding lack of communication of doctor's appointments and other medical

issues.

       {¶ 26} Upon review, we find the trial court did not abuse its discretion in its ruling

on appellant's contempt motion against appellee.

       {¶ 27} Assignment of Error II is denied.
Delaware County, Case No. 18 CAF 04 0032                                                    8


                                              III

       {¶ 28} In his third assignment of error, appellant claims the trial court erred and

abused its discretion in granting appellee's motion for contempt. We disagree.

       {¶ 29} Appellee filed a motion for contempt against appellant on July 26, 2017,

alleging he failed to pay his portion of a doctor's fee as ordered to do so pursuant to an

agreed magistrate's order filed February 16, 2017. Magistrate's Decision at Nos. 109 and

110. At No. 111, the magistrate found the evidence established appellant failed to pay

his portion of the doctor's bill by the required due date, and found him to be in contempt.

The magistrate stated appellant could purge the contempt by reimbursing appellee for his

portion of the bill, and ordered appellant to pay appellee $500 for attorney fees.

Magistrate's Decision at F.

       {¶ 30} In its judgment entry, the trial court found the magistrate did not err in finding

appellant in contempt, as the evidence and the magistrate's findings, taken as true due

to appellant's failure to file a transcript, supported the decision that appellant violated the

February order.

       {¶ 31} Upon review, we agree with the trial court's analysis and find the trial court

did not abuse its discretion in finding appellant in contempt.

       {¶ 32} Assignment of Error III is denied.

                                              IV

       {¶ 33} In his fourth assignment of error, appellant claims the trial court erred and

abused its discretion in denying his motion for the reallocation of parental rights and

responsibilities. We disagree.
Delaware County, Case No. 18 CAF 04 0032                                               9


      {¶ 34} A trial court's decision allocating parental rights and responsibilities is

reviewed under an abuse of discretion standard. Miller v. Miller, 37 Ohio St.3d 71, 523

N.E.2d 846 (1988); Blakemore, supra.

      {¶ 35} R.C. 3109.04(E)(1)(a) states the following:



             The court shall not modify a prior decree allocating parental rights

      and responsibilities for the care of children unless it finds, based on facts

      that have arisen since the prior decree or that were unknown to the court at

      the time of the prior decree, that a change has occurred in the

      circumstances of the child, the child's residential parent, or either of the

      parents subject to a shared parenting decree, and that the modification is

      necessary to serve the best interest of the child.         In applying these

      standards, the court shall retain the residential parent designated by the

      prior decree or the prior shared parenting decree, unless a modification is

      in the best interest of the child and one of the following applies:

             (i) The residential parent agrees to a change in the residential parent

      or both parents under a shared parenting decree agree to a change in the

      designation of residential parent.

             (ii) The child, with the consent of the residential parent or of both

      parents under a shared parenting decree, has been integrated into the

      family of the person seeking to become the residential parent.

             (iii) The harm likely to be caused by a change of environment is

      outweighed by the advantages of the change of environment to the child.
Delaware County, Case No. 18 CAF 04 0032                                                10




       {¶ 36} The magistrate's decision consists of thirty pages, with 111 findings of fact

and conclusions of law and 11 decisions. To reiterate from above, because appellant

failed to file a transcript of the hearings before the magistrate, we accept all of the

magistrate's findings of fact to be true.

       {¶ 37} At No. 92, the magistrate concluded "there has been no change of

circumstances to warrant a change in the residential parent of the minor children herein."

At No. 93, the magistrate went on to state: "Even assuming, arguendo, that a change in

circumstances has occurred, a reallocation of parental rights and responsibilities is not in

the children's best interests and the harm likely to be caused by a change of environment

is not outweighed by the advantages of a change of environment to the children." The

magistrate considered the factors under R.C. 3109.04(F)(1) regarding best interests of

the children and outlined his findings in a lengthy paragraph at No. 95. Considering the

totality of the evidence, the magistrate concluded "that it would not be in the children's

best interest to name Plaintiff residential parent and legal custodian. Similarily, the harm

likely to occur from a change would not be outweighed by the alleged advantages of the

change." Magistrate's Decision at No. 96.

       {¶ 38} In its judgment entry overruling appellant's objections on the reallocation

issue, the trial court stated the following:



              Upon an independent review, the Court finds that the magistrate did

       not err in denying Father's Motion.        First, there was no change of

       circumstance that occurred. The parties' most recent parenting Order was
Delaware County, Case No. 18 CAF 04 0032                                                 11


       issued on October 20, 2015, wherein Mother was designated legal

       custodian and residential parent of the children. The magistrate's findings

       show no change of circumstances from October 20, 2015, up through the

       date of trial. Even assuming, arguendo, that a change of circumstance

       occurred, a change of custody would not be in the children's best interest.

       The magistrate's conclusion was appropriate given his findings that the

       children were acclimated to their school and doing well, the children were

       involved in and enjoyed school-related extra-curricular activities, Father

       downplayed the children's interests, as well as for the other reasons

       provided in the magistrate's thorough Decision, which comprised of over

       100 findings of fact.


       {¶ 39} Upon review, we concur with the trial court's analysis and find the trial court

did not abuse its discretion in denying appellant's motion for the reallocation of parental

rights and responsibilities.

       {¶ 40} Assignment of Error IV is denied.

                                             V

       {¶ 41} In his fifth assignment of error, appellant claims the trial court erred and

abused its discretion in concluding appellee was not responsible for his attorney fees.

We disagree.

       {¶ 42} R.C. 3105.73 governs award of attorney fees and litigation expenses.

Subsection (B) states the following:
Delaware County, Case No. 18 CAF 04 0032                                                12


             In any post-decree motion or proceeding that arises out of an action

      for divorce, dissolution, legal separation, or annulment of marriage or an

      appeal of that motion or proceeding, the court may award all or part of

      reasonable attorney's fees and litigation expenses to either party if the court

      finds the award equitable. In determining whether an award is equitable, the

      court may consider the parties' income, the conduct of the parties, and any

      other relevant factors the court deems appropriate, but it may not consider

      the parties' assets.


      {¶ 43} An award of attorney fees lies within the trial court's sound discretion. Rand

v. Rand, 18 Ohio St.3d 356, 481 N.E.2d 609 (1985); Blakemore, supra.

      {¶ 44} In its judgment entry filed March 20, 2018, the trial court ordered each party

to be "fully responsible for his or her own attorney fees and litigation costs, holding the

other harmless, except as indicated herein."

      {¶ 45} In his appellate brief at 23, appellant argues the following on the issue of

attorney fees:



             The Trial Court concluded that Defendant-Appellee is not

      responsible for the costs incurred on Plaintiff-Appellant for Attorney's fees.

      Plaintiff's Exhibit G2 and G4, shows The Defendant-Appellee denied

      visitation completely and demanded a court trial be held before visitation

      should resume.      The demand was made on no grounds and caused

      immense financial encumbrance upon Plaintiff-Appellant without just cause.
Delaware County, Case No. 18 CAF 04 0032                                                   13


       {¶ 46} It is unclear what attorney fees appellant is contesting. The issue of denied

visitation was addressed in the contempt finding against appellee, and she was ordered

to pay appellant $500 to purge the contempt and $500 "as the reasonable cost for the

filing of the motion and the prosecution." We find the trial court did not abuse its discretion

in awarding appellant $500 for attorney fees on the contempt motion.

       {¶ 47} If appellant is challenging the lack of an award of attorney fees on his motion

for the reallocation of parental rights and responsibilities, we note appellant did not

prevail. We find the trial court did not abuse its discretion in ordering each party to be

responsible for their own attorney fees and litigation costs.

       {¶ 48} Upon review, we find the trial court did not abuse its discretion on the issue

of attorney fees.

       {¶ 49} Assignment of Error V is denied.
Delaware County, Case No. 18 CAF 04 0032                                     14


      {¶ 50} The judgment of the Court of Common Pleas of Delaware County, Ohio,

Domestic Relations Division is hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.




                                           _______________________________
                                           Hon. Earle E. Wise, Jr.




                                           _______________________________
                                           Hon. William B. Hoffman




                                           _______________________________
                                           Hon. Craig R. Baldwin


EEW/db 115
[Cite as Rodriguez v. Porras, 2018-Ohio-4694.]


                 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



JOSHUA RODRIGUEZ                                 :
                                                 :
        Plaintiff-Appellant                      :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
TAMARA PORRAS (NKA BALES)                        :
                                                 :
        Defendant-Appellee                       :       CASE NO. 18 CAF 04 0032




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

of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to appellant.




                                                 _______________________________
                                                 Hon. Earle E. Wise, Jr.




                                                 _______________________________
                                                 Hon. William B. Hoffman




                                                 _______________________________
                                                 Hon. Craig R. Baldwin
