[Cite as Williams v. Williams, 2013-Ohio-5861.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



SUE E. WILLIAMS                                   :   JUDGES:
                                                  :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        :   Hon. Patricia A. Delaney, J.
                                                  :   Hon. Craig R. Baldwin, J.
-vs-                                              :
                                                  :
JOHN V. WILLIAMS                                  :   Case No. 2013 AP 07 0027
                                                  :
        Defendant-Appellant                       :   OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2009 TM 10 0489



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     December 18, 2013




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

ERICK L. BAUER                                        JAMES J. ONG
204 West High Avenue                                  201 North Main Street
New Philadelphia, OH 44663                            Uhrichsville, OH 44683
Tuscarawas County, Case No. 2013 AP 07 0027                                               2

Farmer, P.J.

       {¶1}    On May 12, 1984, appellant, John Williams, and appellee, Sue Williams,

were married. On October 27, 2009, appellee filed a complaint for divorce. By agreed

judgment entry and decree of divorce filed June 14, 2011, the trial court granted the

parties a divorce and divided the parties' property.      Pertinent to this appeal is the

disposition of the marital residence property and a vacant piece of property. Appellant

was to pay on the indebtedness of the properties for eight and one-half years. Appellee

was to have exclusive use of the marital residence property. At the expiration of the

term, the properties were to be sold or appellee could purchase appellant's interest

therein. The trial court retained jurisdiction over the issue of property division to ensure

equitableness.

       {¶2}    On August 28, 2012, appellant filed a motion for termination of obligation

to pay indebtedness against real estate due to appellee moving her boyfriend into the

marital residence. On November 14, 2012, appellant filed a motion for sale of vacant

land due to his having paid off the indebtedness thereon. A hearing on the motions was

held before a magistrate on February 15, 2013. By decision filed April 29, 2013, the

magistrate recommended that neither property should be sold.                Appellant filed

objections. By judgment entry filed May 31, 2013, the trial court denied the objections

and approved and adopted the magistrate's decision.

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

consideration. Assignments of error are as follows:
Tuscarawas County, Case No. 2013 AP 07 0027                                            3


                                            I

      {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING

APPELLANT'S MOTION TO TERMINATE OBLIGATION TO PAY INDEBTEDNESS

AGAINST REAL ESTATE."

                                           II

      {¶5}   "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING

APPELLANT'S MOTION FOR SALE OF VACANT GROUND."

                                          I, II

      {¶6}   Appellant claims the trial court erred in denying his motion for termination

of obligation to pay indebtedness against real estate due to appellee moving her

boyfriend into the marital residence, and his motion for sale of vacant land due to his

having paid off the indebtedness thereon. We disagree.

      {¶7}   By agreed judgment entry and decree of divorce filed June 14, 2011,

appellant was to pay on the indebtedness of the marital residence property and the

vacant property for eight and one-half years. Appellee was to "exclusively use the

marital residence."   Appellant argues appellee violated the exclusivity clause of the

agreement when she moved her boyfriend into the marital residence. As for the vacant

property, appellant argues he paid the indebtedness early and therefore the property

could be sold.

      {¶8}   In her decision filed April 29, 2013, the magistrate reviewed the agreed

judgment entry and stated the following at Finding of Fact No. 7: "***The Magistrate

finds that an award of exclusive use refers to use between the parties. Therefore, John

Williams may not reside in the home." The magistrate further found at Finding of Fact
Tuscarawas County, Case No. 2013 AP 07 0027                                              4


No. 9: "The Magistrate further finds that John Williams' expenses for the marital

residence are the same whether Sue Williams resides there alone or with others.

However, her choice to move her boyfriend into the home, which her ex-husband is

paying for, is probably insensitive and tasteless."

       {¶9}   As for the vacant property, the magistrate found the following at Finding of

Fact No. 4:



              Paragraph 7(h) states "For an eight and one-half (8 ½) year period,

       commencing April 07, 2011, John Williams shall pay and hold Sue

       Williams harmless from all real estate taxes assessed against the above

       listed parcels." The Magistrate finds the parties planned to retain both the

       marital residence and the vacant land for eight and a half (8 ½) years.



       {¶10} The magistrate recommended that "[n]either the marital residence nor the

vacant land should be sold."

       {¶11} In reviewing the magistrate's decision, the trial court noted a transcript of

the magistrate's hearing was not filed pursuant to Civ.R. 53(D)(3)(b)(iii). The trial court

determined: "***upon independent analysis and review of the Magistrate's Decision filed

April 29, 2013, the Findings of Fact and Conclusions of Law support the

Recommendations of the Magistrate and that the Magistrate's Decision should be

adopted in its entirety without modification." See, Judgment Entry filed May 31, 2013.

       {¶12} In his May 8, 2013 written objections to the magistrate's decision,

appellant petitioned the trial court "to waive the requirement of the transmission of the
Tuscarawas County, Case No. 2013 AP 07 0027                                            5


transcript" as the facts were uncontroverted and the magistrate misapplied the facts to

the law. We note a transcript of the magistrate's February 5, 2013 hearing was filed

after the fact on August 5, 2013. As explained by our brethren from the Sixth District in

Helmke v. Helmke, 6th Dist. Ottawa No. OT-04-029, 2005-Ohio-1388, ¶ 16:



             The transcript is part of the record on appeal; however, "[a]

      reviewing court cannot add matter to the record before it, which was not a

      part of the trial court's proceedings, and then decide the appeal on the

      basis of the new matter." State v. Ishmail (1978), 54 Ohio St.2d 402, 377

      N.E.2d 500, paragraph one of the syllabus.         As such, when a party

      objecting to a magistrate's decision fails to provide the trial court with the

      transcript of evidence, by which the court could make a finding

      independent of the magistrate's, appellate review of the court's findings is

      limited to whether the trial court abused its discretion in adopting the

      magistrate's decision, and the appellate court is precluded from

      considering the transcript of the hearing submitted with the appellate

      record. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio

      St.3d 728, 730, 654 N.E.2d 1254; High v. High (1993), 89 Ohio App.3d

      424, 427, 624 N.E.2d 801; and Howard v. Howard, 6th Dist. No. L-02-

      1371, 2003-Ohio-5683, ¶ 12-15. Therefore, this court could only review

      the trial court's decision for an abuse of discretion, i.e., whether, in

      adopting the magistrate's report, "the court's attitude [was] unreasonable,

      arbitrary or unconscionable." State ex rel. Edwards v. Toledo City School
Tuscarawas County, Case No. 2013 AP 07 0027                                             6

         Dist. Bd. Of Edn. (1995), 72 Ohio St.3d 106, 107, 647 N.E.2d 799; and

         Proctor v. Proctor (1988), 48 Ohio App.3d 55, 63, 548 N.E.2d 287.



         {¶13} It is perfectly logical that the exclusivity use "refers to use between the

parties." Therefore, we do not find the trial court's decision was unreasonable, arbitrary

or unconscionable on this issue.

         {¶14} The agreed judgment entry at paragraphs 7(a), (b), (d), and (e) lists the

marital residence property and the vacant property and states: "[t]he real estate is

currently encumbered by a first mortgage to the First National Bank of Dennison Ohio"

and "[t]he real estate is currently encumbered by a home equity loan with Chase Bank."

Paragraph 7(f) provides for appellant to pay on the properties for eight and one-half

years commencing on April 7, 2011, and hold appellee harmless from the indebtedness.

Paragraph 7(k) specifically states: "[a]fter the expiration of the above listed eight and

one-half (8 ½) year period, the above listed real estate and marital residence shall be

sold."

         {¶15} Pursuant to the agreed judgment entry, the parties planned to retain both

the marital residence and the vacant land for eight and one-half years. Appellant notes

the trial court retained jurisdiction over the issue of property division to ensure

equitableness, and argues equitableness calls for the vacant property to be sold since

he paid the indebtedness thereon early. Appellant was to pay on the indebtedness

which included a first mortgage and a home equity loan. Although appellant argues he

paid the indebtedness early on the vacant land, there is no evidence to support what
Tuscarawas County, Case No. 2013 AP 07 0027                                     7


"indebtedness" he paid, i.e., the first mortgage or the home equity loan, and what

amount he paid vis-à-vis the values of the respective properties.

      {¶16} Upon review, we do not find the trial court abused its discretion in

approving and adopting the magistrate's decision.

      {¶17} Assignments of Error I and II are denied.

      {¶18} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




                                            _______________________________
                                            Hon. Sheila G. Farmer



                                            _______________________________
                                            Hon. Patricia A. Delaney



                                            _______________________________
                                            Hon. Craig R. Baldwin


SGF/sg 1120
[Cite as Williams v. Williams, 2013-Ohio-5861.]


               IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



SUE E. WILLIAMS                                   :
                                                  :
        Plaintiff-Appellee                        :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JOHN V. WILLIAMS                                  :
                                                  :
        Defendant-Appellant                       :       CASE NO. 2013 AP 07 0027




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

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

Costs to appellant.




                                                  _______________________________
                                                  Hon. Sheila G. Farmer



                                                  _______________________________
                                                  Hon. Patricia A. Delaney



                                                  _______________________________
                                                  Hon. Craig R. Baldwin
