[Cite as Franklin v. Brown, 2014-Ohio-1668.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JUMILLE FRANKLIN                               :    JUDGES:
                                               :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :    Hon. Sheila G. Farmer, J.
                                               :    Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
STANLEY BROWN                                  :    Case No. 13CA75
                                               :
        Defendant-Appellant                    :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Division,
                                                    Case No. 2012 SUP 1114



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 16, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JEFFEREY R. STIFFLER                                SAMUEL R. SMITH, II
21 North Walnut Street                              323 West Lakeside Avenue
Mansfield, OH 44902                                 Suite 420
                                                    Cleveland, OH 44113
RIchland County, Case No. 13CA75                                                     2

Farmer, J.

       {¶1}   Appellant, Stanley Brown, and appellee, Jumille Franklin, have three

children together.   On October 23, 2012, appellee filed a motion to establish child

support. Hearings before a magistrate were held on April 17, and May 29, 2013. By

decision filed June 10, 2013, the magistrate recommended that appellant pay child

support from August 7, 1996 to August 31, 2009.       Appellant filed objections.   By

judgment entry filed July 25, 2013, the trial court denied the objections and approved

and adopted the magistrate's decision with a minor amendment to correct a

typographical error in the magistrate's decision.

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

consideration. Assignments of error are as follows:

                                             I

       {¶3}   "THE TRIAL COURT, ON OR ABOUT JULY 25, 2013, ERRED IN

OVERRULING DEFENDANT-APPELLANT'S OBJECTIONS, FILED ON JUNE 10,

2013, AND IN AFFIRMING THE MAGISTRATE'S DECISION, BASED ON HEARINGS

HELD ON OR ABOUT APRIL 17 AND MAY 29, 2013, AWARDING CHILD SUPPORT

FOR PLAINTIFF-APPELLEE FROM THE TIME PERIOD OF 1996 TO 2005 BECAUSE

PLAINTIFF-APPELLEE DID COHABITATE WITH DEFENDANT-APPELLANT FROM

1996 TO 2005 THUS DEMONSTRATING PLAINTIFF-APPELLEE WAS NOT

ENTITLED TO CHILD SUPPORT."

                                             II

       {¶4}   "THE TRIAL COURT, ON OR ABOUT JULY 25, 2013, ERRED IN

OVERRULING DEFENDANT-APPELLANT'S OBJECTIONS, FILED ON JUNE 10,
RIchland County, Case No. 13CA75                                                         3


2013, AND IN AFFIRMING THE MAGISTRATE'S DECISION, BASED ON HEARINGS

HELD ON OR ABOUT APRIL 17 AND MAY 29, 2013, ON OR ABOUT APRIL 17, 2013

AND MAY 29, 2013 (SIC), AWARDING CHILD SUPPORT FOR PLAINTIFF-APPELLEE

FROM THE TIME PERIOD OF 1996 TO 2005 BECAUSE PLAINTIFF-APPELLEE WAS

LISTED AS A NON-QUALIFYING DEPENDENT ON DEFENDANT-APPELLANT'S

2003 AND 2004 FEDERAL INCOME TAX RETURNS, WHICH MIRROR THE TIME

FRAME PLAINTIFF-APPELLEE COHBITATED WITH DEFENDANT-APPELLANT

THUS DEMONSTRATING PLAINTIFF-APPELLEE WAS NOT ENTITLED TO CHILD

SUPPORT."

                                           I, II

       {¶5}   Appellant claims the trial court erred in awarding child support for the time

period of 1996 to 2005 because he and appellee were cohabitating during this time and

he was paying child support and the monthly mortgage payment, and he listed appellee

as a dependent on his 2003 and 2004 income tax returns. We disagree.

       {¶6}   In his decision filed June 10, 2013, the magistrate found the following in

pertinent part:



              Defendant's testimony that they lived together from 2000 until July

       of 2005 was not sufficiently compelling, and was unsupported by any

       additional evidence. At the pretrial in this case, the Defendant indicated

       that he would collect proof (from Columbia Gas bills, for example) of

       where he and the children were living during this earlier time.          He
RIchland County, Case No. 13CA75                                                    4


     presented no such evidence at the hearing. Consequently, he failed to

     prove his argument in this respect.

           From those times when he was admittedly not living with the

     Plaintiff and the children, the Defendant had the burden of proving a

     specific dollar amount of support previously provided to offset the

     guideline amount. He claimed to have paid $200 per month when they

     had one child, $400 per month when they had two children, and $750 per

     month when there were three children.        Defendant claimed all these

     payments were in cash. He presented no documents (such as regular

     withdrawals from a bank account) or the testimony of any witness

     corroborating his claim. His testimony was quite brief and was completely

     lacking in any degree of precision or consistency.

           ***

           Although this is true, Defendant still had to prove a total figure of

     support provided and it is only reasonable to expect from him evidence

     that he could have obtained to prove the amount actually given.

     Unfortunately, the figure he provided was not believable, just as the denial

     by the mother was not believable.

           The main problem with Defendant's claim is that the amounts he

     referred to in his testimony ($200 or $400 or $850 per month) appeared to

     be fabricated because he could not remember what he had actually given

     or because he did not want to put forth the effort to procure documents

     that would establish the amounts he gave to support his children's
RIchland County, Case No. 13CA75                                                      5

     household. Given his testimony at the May hearing, he appeared to have

     abandoned his earlier position that he had paid the mortgage and made

     cash payments and adopted a simpler position, i.e., that he had made

     specific equal monthly cash payments.         If he had in fact made the

     mortgage payments, it would seem plausible that he would have been

     able to come up with some documents showing that fact, even though

     those alleged payments were made many years ago.                  If he was

     "maintaining the mortgage," he could have also presented documents

     from the lender showing the reduction of the mortgage during the time

     they were not together. He did not present such documents. It was clear

     from the evidence presented that Defendant put very little effort into

     proving that he supported his children in the manner he claimed.

     Defendant correctly pointed out that virtually no one would retain records

     pertaining to that support for such a long period of time. While this is true,

     he suffers the consequence of failing to do so, and of failing to get

     documents from a bank account or from a the (sic) mortgage holder, if

     applicable. Defendant did not carry his burden of proving that he should

     be entitled to an abatement of his child support obligation when he was

     absent from the children's home.

            The Defendant's obligation, based on these findings, runs from

     1996 until the present, with the exception of the period stipulated to

     (September 1, 2009 to August 1, 2012).
RIchland County, Case No. 13CA75                                                             6


       {¶7}   Appellant's pro se objections filed on June 19, 2013 argued the specific

facts in the decision that the magistrate found were unsupported.

       {¶8}   As noted by the trial court in its July 25, 2013 judgment entry overruling

the objections, a transcript was not filed to support these factual challenges.            The

magistrate's decision specifically recites in bold capital letters that factual challenges

must be supported by a transcript of all the evidence submitted to the magistrate

relevant to that finding. Civ.R. 53(D)(3)(b)(iii) states the following:



              (iii) Objection to magistrate's factual finding; transcript or affidavit.

       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. With

       leave of court, alternative technology or manner of reviewing the relevant

       evidence may be considered. The objecting party shall file the transcript

       or affidavit with the court within thirty days after filing objections unless the

       court extends the time in writing for preparation of the transcript or other

       good cause. If a party files timely objections prior to the date on which a

       transcript is prepared, the party may seek leave of court to supplement the

       objections.



       {¶9}   Although appellant caused a partial transcript to be filed for this appeal

(the April 17, 2013 hearing was not included), it is insufficient to bootstrap this into a
RIchland County, Case No. 13CA75                                                       7

viable appeal.   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

      Dist. Bd. Of Edn.(1995), 72 Ohio St.3d 106, 107, 647 N.E.2d
RIchland County, Case No. 13CA75                                                          8

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

      287.

      {¶10} Based upon the foregoing and our review of the record, we find the trial

court did not abuse its discretion in approving and adopting the magistrate's decision.

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

      {¶12} The judgment of the Court of Common Pleas of Richland County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




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