[Cite as Harris v. Burgess, 2011-Ohio-1506.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




CHRISTOPHER HARRIS                             :      JUDGES:
                                               :      Hon. William B. Hoffman, P.J.
        Petitioner-Appellant                   :      Hon. Sheila G. Farmer, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :
JOHANNA BURGESS                                :      Case No. 10-CA-13
                                               :
        Petitioner-Appellee                    :      OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common Pleas,
                                                   Case No. 2004DS00291



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            March 24, 2011




APPEARANCES:

For Petitioner-Appellant                           For Petitioner-Appellee

CHRISTOPHER HARRIS, PRO SE                         NICKOLAS K. MCCOY
104 Georges Creek Drive                            420 East Main Street
Pickerington, OH 43147                             Lancaster, OH 43130
Perry County, Case No. 10-CA-13                                                      2

Farmer, J.

       {¶1}   On October 26, 2004, appellant, Christopher Harris, and appellee,

Johanna Burgess, were granted a dissolution. Four children were born as issue of the

marriage. Appellant was named residential parent of the children. No formal child

support order was issued.

       {¶2}   On May 22, 2007, appellee was deemed residential parent of the children.

Appellant was ordered to pay appellee child support in the amount of $1,049.72 per

month.

       {¶3}   On July 27, 2009, appellant became the permanent residential parent of

the parties' oldest child.

       {¶4}   On October 1, 2009, appellant requested an administrative review of child

support by the Perry County Child Support Enforcement Agency (hereinafter

"PCCSEA"). A hearing was held on December 16, 2009. By report filed December 17,

2009, the PCCSEA recommended that appellant's child support obligation be lowered to

$906.13 per month with private health insurance being provided, or $866.59 per month

when private health insurance was not being provided plus $198.76 per month for cash

medical support.

       {¶5}   On January 4, 2010, the PCCSEA asked the trial court to adopt the

recommendation.       Two days later, appellee filed a request for a hearing on the

recommendations. A hearing before a magistrate was held on April 30, 2010. By

decision filed May 25, 2010, the magistrate increased PCCSEA's recommendation to

$981.16 per month with private health insurance being provided, or $940.20 per month

when private health insurance was not being provided plus $198.72 per month for cash
Perry County, Case No. 10-CA-13                                                            3


medical support. Objections were not filed. The trial court approved and adopted the

magistrate's decision.

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

consideration. Assignments of error are as follows:

                                               I

       {¶7}   "THE    TRIAL     COURT      ABUSED       DISCRETION           AND   ERRED   IN

INCLUSION OF ADDITIONAL CHILD CARE EXPENSES FOR APPELLEE, WHICH

SEVERELY PREJUDICED APPELLANT."

                                              II

       {¶8}   "THE TRIAL COURT ABUSED DISCRETION THROUGH USE OF

PROPERLY EXCLUDED/UNADMITTED EVIDENCE."

                                              III

       {¶9}   "ALTERING PCSEA'S FINDING FOR CHILD CARE EXPENSES WAS

AGAINST MANIFEST WEIGHT OF THE EVIDENCE."

                                              IV

       {¶10} "ASSESSING COURT COSTS TO APPELLEE INEQUITABLE/ABUSE OF

DISCRETION."

       {¶11} At the outset, we find objections to the magistrate's report were not filed

pursuant to Civ.R. 53(D)(3)(b). Normally, this failure would result in a presumption of

regularity of the proceedings under Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197; however, we note in the magistrate's decision wherein the warning on the

need to file objections was set forth, the incorrect civil rule was cited:
Perry County, Case No. 10-CA-13                                                         4


       {¶12} "A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S

ADOPTION OF ANY FINDING OF FACT OR CONCLUSION OF LAW IN THIS

DECISION UNLESS THE PARTY TIMELY AND SPECIFICALLY OBJECTS TO THE

FINDING OR CONCLUSION AS REQUIRED BY CIV.R.53(E)(3)."

       {¶13} Under the rule in effect on May 25, 2010, there was no longer a

subsection (E)(3). We conclude the warning and notice were ineffective, and we will

review the assignments of error despite the failure to file objections.

                                              I

       {¶14} Appellant claims the trial court erred in considering appellee's child care

expenses and as a result, he was severely prejudiced. It appears appellant's issue

under this assignment centers on the trial court's denial of his continuance request just

prior to the hearing.

       {¶15} The grant or denial of a continuance rests in the trial court's sound

discretion. State v. Unger (1981), 67 Ohio St.2d 65. In order to find an abuse of that

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

(1983), 5 Ohio St.3d 217.

       {¶16} Pursuant to a final hearing order filed January 11, 2010, the trial court set

the hearing for April 30, 2010, and listed the discovery cut-off date as "30 days prior to

trial." During the discussion on the continuance request, appellant admitted that he

served appellee with interrogatories and document requests on March 29 and 30, 2010.

T. at 5. Appellant began his discovery request when discovery should have already

been completed.
Perry County, Case No. 10-CA-13                                                       5


      {¶17} We     note   as   early   as   the   December   17,   2009   administrative

recommendations, appellant was aware of the child care expenses issue. The failure to

propound timely interrogatories and document requests was clearly an error by

appellant.

      {¶18} The magistrate addressed appellant's request and denied same:

      {¶19} "MAGISTRATE BOLYARD: ***Mr. Harris, I'm not going to grant a

continuance based on your discovery request because discovery should have been

completed at the time you first sent it out. It should have already been completed." T.

at 11-12.

      {¶20} Upon review, we find this decision was not an abuse of discretion.

      {¶21} Assignment of Error I is denied.

                                            II

      {¶22} Appellant claims the decision was based on properly excluded,

unadmitted evidence. We disagree.

      {¶23} Appellant argues the magistrate's finding at No. 6, "Ms. Burgess has child

care expenses in the amount of $60.00 per week and $200.00 per week for five weeks

in the summer" was based upon excluded and inadmissible evidence.

      {¶24} During the hearing, the magistrate specifically asked appellee the amount

of her child care expenses:

      {¶25} "MAGISTRATE BOLYARD: What are your child care expenses?

      {¶26} "MS. BURGESS: Right now we pay $60 a week, and it will be $200 a

week during the summer for five weeks." T. at 63.
Perry County, Case No. 10-CA-13                                                          6


       {¶27} The magistrate did not permit any documentation on the issue because of

a discovery violation. T. at 67.

       {¶28} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,

certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

       {¶29} From the magistrate's findings, it is clear that the magistrate believed

appellee's statement regardless of the lack of documentation.

       {¶30} Upon review, we conclude there is direct evidence in the record by

appellee of her child care expenses, and the findings were based upon that direct

testimony.    There is no indication that any documentation was considered by the

magistrate.

       {¶31} Assignment of Error II is denied.

                                            III

       {¶32} Appellant claims the decision to alter PCCSEA's recommendations for

child care expenses was against the manifest weight of the evidence. We disagree.

       {¶33} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent
Perry County, Case No. 10-CA-13                                                          7

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

       {¶34} As we addressed in Assignment of Error II, appellee's direct testimony

established what her child care expenses were and would be in the summer. On the

trial court's worksheet, child care expenses assigned to appellee were $2,979.60 as

opposed to $1,150.07 on the PCCSEA's worksheet.             This change in computation

resulted in increased child support.      Admittedly, this was an increase from the

administrative recommendations issued some four months prior to the magistrate's

hearing.

       {¶35} The additional child care expense for four children resulted in a net

increase of $75.03 with health insurance per month, or $73.61 without health insurance

per month.

       {¶36} Upon review, we find competent credible evidence to support the

magistrate's/trial court's decision.

       {¶37} Assignment of Error III is denied.

                                            IV

       {¶38} Appellant claims the trial court erred in accessing court costs to him. We

disagree.

       {¶39} The assessment of costs is within the trial court's discretion and will not be

reversed absent an abuse of discretion. Taylor v. McCullough Hyde Memorial Hospital

(1996), 116 Ohio App.3d 595; Blakemore.
Perry County, Case No. 10-CA-13                                                       8


       {¶40} We note appellant requested the administrative review hearing. In the

appellate rules, the loser is responsible for court costs. See, App.R. 24. Once having

lost, it was appellant's burden to pay the court costs.

       {¶41} Upon review, we find no abuse of discretion by the trial court in assessing

court costs to appellant.

       {¶42} Assignment of Error IV is denied.

       {¶43} The judgment of the Court of Common Pleas of Perry County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                              _s/ Sheila G. Farmer__________________




                                              _s/ William B. Hoffman________________




                                              _s/ Patricia A. Delaney________________

                                                             JUDGES

SGF/sg 224
Perry County, Case No. 10-CA-13                                                  9


             IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT




CHRISTOPHER HARRIS                       :
                                         :
       Petitioner-Appellant              :
                                         :
-vs-                                     :        JUDGMENT ENTRY
                                         :
JOHANNA BURGESS                          :
                                         :
       Petitioner-Appellee               :        CASE NO. 10-CA-13




       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

appellant.




                                         s/ Sheila G. Farmer__________________




                                         _s/ William B. Hoffman________________




                                         _s/ Patricia A. Delaney________________

                                                         JUDGES
