[Cite as Oliver v. Oliver, 2014-Ohio-5230.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
MISTY L. OLIVER                                :       Hon. W,. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellant   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2014-AP-04-0014
JOSEPH D. OLIVER                               :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Tuscarawas County
                                                   Court of Common Pleas, Case No. 2009
                                                   TM 03 0151


JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            November 21, 2014



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

SHARON BUCKLEY-MIRHAIDARI                          BRADLEY HILLYER
152 North Broadway Ave., Ste. 200                  201 N. Main Street, P.O. Box 272
New Philadelphia, OH 44663                         Uhrichsville, OH 44683
[Cite as Oliver v. Oliver, 2014-Ohio-5230.]


Gwin, P.J.

        {¶1}     Appellant appeals the March 11, 2014 judgment entry of the Tuscarawas

Court of Common Pleas denying appellant’s motion for extension of time to file

transcript, overruling appellant’s objections to the magistrate’s decision, and adopting

the findings of fact, conclusions of law, and recommendations of the magistrate as

orders of the court.

                                              Facts & Procedural History

        {¶2}     Appellee Joseph Oliver and appellant Misty Oliver were married in 1999.

Appellant filed a complaint for divorce on March 31, 2009. The case proceeded to trial

before a magistrate in June of 2010 and the magistrate issued her decision on January

14, 2011. Objections were filed to the magistrate’s decision. The trial court held a

hearing on the objections and adopted the magistrate’s decision in part and modified

the magistrate’s decision in part. As part of the trial court’s decision, a property in

Mineral City was ordered sold at arm’s length with any amount over and above a

$40,000 debt owed to appellee’s mother to be split equally between the parties.

Further, appellee would be responsible for the debt in full if the sale price did not cover

the amount owed to appellee’s mother. Appellant appealed the trial court’s decision,

assigning thirteen assignments of error. Appellee also appealed the trial court’s entry

and assigned four assignments of error. In Oliver v. Oliver, 5th Dist. Tuscarawas No.

2012 AP 11 0067, 2013-Ohio-4389, this Court overruled all of appellant’s and appellee’s

assignments of error and affirmed the trial court’s decision.

        {¶3}     As part of the first appeal, appellant argued that the trial court failed to

assign a value to a property in Mineral City and argued the trial court erred in awarding
Tuscarawas County, Case No. 2014-AP-04-0014                                             3


the property to appellee. However, this Court overruled her arguments, finding that the

trial court specifically found the Mineral City property had “no value over and above

what is owed to Norma Oliver and is a liability” and that both parties agreed the amount

owed to Norma Oliver was $40,000.         This Court determined the valuation for the

property was supported by competent and credible evidence. Neither appellant nor

appellee appealed our decision in Oliver v. Oliver, 5th Dist. Tuscarawas No. 2012 AP 11

0067, 2013-Ohio-4389.

      {¶4}   On November 28, 2012, appellant filed a motion for contempt against

appellee for failing to sell the Mineral City property at arm’s length and a motion for

accounting seeking legal documentation of the sale of the Mineral City property.

Appellee filed an affidavit on December 11, 2012 stating that he sold the Mineral City

property at an arm’s length. Appellee also provided the settlement statement prepared

by the title company for the sale of the Mineral City property. On December 20, 2012,

appellee filed additional supplemental documents, including a signed real estate

purchase agreement and release of mortgage, indicating the purchase price of the

property was $40,000 with a $20,000 down payment and monthly payments of $400 per

month to appellee’s mother until the debt is paid in full. On January 16, 2013, the trial

court held these motions in abeyance pending a ruling by this Court in Oliver v. Oliver,

5th Dist. Tuscarawas No. 2012 AP 11 0067, 2013-Ohio-4389.

      {¶5}   On December 11, 2013, the magistrate held a hearing on appellant’s

motions and issued a decision on January 2, 2014. The magistrate found that, since

the purpose of an arm’s length transaction is to obtain fair market value for the property

and the property was sold for fair market value, the necessity of an arm’s length
Tuscarawas County, Case No. 2014-AP-04-0014                                              4


transaction was superfluous. However, even if it were not superfluous, the sale was an

arm’s length transaction because there was no evidence there was not equal bargaining

power between the parties and there was not a forced sale. The magistrate further

found that the judgment entry of divorce does not require appellee to provide an

accounting of the sale. Further, that appellee provided to appellant the agreement to

sell real estate, closing statement, and release of mortgage and thus no further

accounting of the Mineral City property was required.

       {¶6}   On January 16, 2014, appellant filed objections to the magistrate’s

decision, including objections to the magistrate’s findings of fact and conclusions of law.

In a January 24, 2014 letter to appellant’s attorney, the court reporter indicated that the

estimated cost of the transcript for the December 2013 hearing was $280.00 and stated

a deposit was required within ten (10) days.        On February 24, 2014, a notice was

provided to the trial court that no deposit was paid for the transcript.

       {¶7}   The trial court set the matter for an objection hearing on March 10, 2014.

On March 7, 2014, appellant filed a memorandum in support of objections and motion

for extension of time to file the transcript.       Appellant indicated that she needed

additional time to pay the deposit for the transcript. In a March 11, 2014 judgment

entry, the trial court denied appellant’s motion for extension of time to file transcript,

overruled appellant’s objections with regards to the Mineral City property, and adopted

the findings of fact, conclusions of law, and recommendations of the magistrate.

       {¶8}   Appellant appeals the March 11, 2014 judgment entry of the Tuscarawas

County Court of Common Pleas and assigns the following as error:
Tuscarawas County, Case No. 2014-AP-04-0014                                                 5


       {¶9}   “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING THE TRANSFER OF THE MINERAL CITY PROPERY WAS AN ARM’S

LENGTH        TRANSACTION.           THE     TRIAL      COURT’S      DECISION       DENIED

APPELLANT/MISTY OLIVER HER RIGHT TO DUE PROCESS IN ORDERING THE

TRANSFER AN ARM’S LENGTH TRANSACTION.

       {¶10} "II.   THE     TRIAL     COURT’S         DECISION    THAT     NO     FURTHER

ACCOUNTING WAS NECESSARY WAS AN ABUSE OF DISCRETION AND DENIED

MISTY OLIVER HER RIGHT TO DUE PROCESS AS GUARANTEED BY THE U.S.

AND OHIO CONSTITUTION.

       {¶11} "III. THE TRIAL COURT ERRED IN DENYING MISTY OLIVER

ADDITIONAL TIME TO FILE A TRANSCRIPT AND DENIED HER RIGHT TO DUE

PROCESS.”

                                                 I.

       {¶12} We first must address appellant’s failure to present a transcript to the trial

court for its review of appellant’s objections to the magistrate’s decision. Appellant did

not file a transcript of the proceedings with the trial court for ruling on her objections as

required by Civil Rule 53(D)(3)(b)(iii). Appellant has not filed a transcript with this Court.

Further, appellant could have, but did not, seek to file an affidavit of the evidence under

Civil Rule 53(D)(3)(b)(iii). See, e.g., State ex rel. Motley v. Capers, 23 Ohio St.3d 56,

491 N.E.2d 311 (1986) (holding that a transcript is “unavailable” for purposes of App.R.

9(C) which allows the use of narrative statements when indigent appellant is unable to

bear the cost of providing transcript).
Tuscarawas County, Case No. 2014-AP-04-0014                                               6


       {¶13} When the party objecting to a magistrate’s decision fails to provide a

transcript, our review of the trial court’s findings is limited to whether the trial court

abused its discretion in adopting the magistrate’s decision. State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 654 N.E.2d 1254 (1995). In order to find

an abuse of discretion, we must determine whether the trial court acted unreasonably,

arbitrarily, or unconscionably and there was not merely an error of law or judgment.

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

objecting party 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. Doane v. Doane, 5th Dist. Guernsey No. 00CA21,

2001 WL 474267 (May 2, 2001). Accordingly, we review this matter only to analyze

whether the trial court abused its discretion in reaching specific legal conclusions based

upon the established facts. Sochor v. Smith, 5th Dist. Licking No. 00CA00001, 2000

WL 963110 (June 28, 2000).

       {¶14} Appellant argues the trial court erred in not finding appellant in contempt

for the failure to sell the Mineral City property in an arm’s length transaction because the

property was sold to appellee’s cousin for $40,000 with a $20,000 down payment and

$400 no-interest, monthly payments to appellee’s mother to pay off the liability. An

arm’s length transaction possesses three primary characteristics: it is “voluntary, i.e.

without compulsion or duress; it generally takes place in an open market; and the

parties act in their own self-interest.”   North Royalton City School District Board of

Education v. Cuyahoga County Board of Revision, 129 Ohio St.3d 172, 2011-Ohio-

3092, 950 N.E.2d 955.       The Supreme Court explained that while an arm’s length
Tuscarawas County, Case No. 2014-AP-04-0014                                              7


transaction generally occurs on the open market, “the case law does not condition

character of a sale as an arm’s length transaction on whether the property was

advertised for sale or was exposed to a broad range of potential buyers” and thus the

absence of open-market elements does not necessarily negate the arm’s length nature

of a transaction. Id. An arm’s length transaction is also defined as: “1. a transaction

between two unrelated and unaffiliated parties. 2. A transaction between two parties,

however closely related they may be, conducted as if the parties were strangers, so that

no conflict of interest arises.” Black’s Law Dictionary (9th ed. 2009).

       {¶15} The findings of fact by the magistrate establish that: the fair market value

of the Mineral City property is $40,000 and the property sold for $40,000; as long as the

property sold for fair market value, the necessity of an arm’s length transaction is

superfluous; the sale of the Mineral City property is an arm’s length sale because there

is no evidence that either the buyer or seller had more or less bargaining power; there is

no evidence it was a forced sale; an arm’s length transaction can occur between

relatives as long as it is conducted as if they were strangers; and there is no evidence

that any stranger offered more than $40,000 for the property or that such an offer was

pending.

       {¶16} Based upon these established facts, we find the trial court did not abuse

its discretion in reaching the legal conclusion that appellee was not in contempt for

failing to sell the Mineral City property at an arm’s length sale. There is no evidence

that either the buyer or seller had more or less bargaining power, that the sale was

forced, or that the parties did not act in their own self-interest. The absence of an open-

market element does not negate the arm’s length nature of the transaction in this case
Tuscarawas County, Case No. 2014-AP-04-0014                                            8


because the established facts are that: the transaction was conducted as if the parties

were strangers; there is no evidence that any stranger offered more than $40,000 for

the property or that such an offer was pending; and that the property sold for the fair

market value of $40,000 established in the divorce decree and affirmed by this Court on

appeal. Accordingly, appellant’s first assignment of error is overruled.

                                               II.

      {¶17} Appellant next argues the trial court erred in not finding appellee in

contempt for the failure to provide appellant with an accounting of the sale of the

Mineral City property. We disagree. In her findings of fact, the magistrate found that,

pursuant to the terms of the decree, appellee was not required to provide appellant an

accounting. Further, that appellee provided appellant a copy of the agreement to sell

real estate, the closing statement and the release of mortgage, stating that the property

sold for $40,000. Thus, appellee was not found to be in contempt regarding the failure

to provide an accounting.

      {¶18} We find no abuse of discretion in the trial court’s decision in reaching the

conclusion that appellee was not in contempt for failure to provide an accounting based

upon the established facts as listed above. Appellant’s second assignment of error is

overruled.


                                               III.

      {¶19} Appellant finally argues the trial court erred in denying her motion for

additional time to file a transcript as she was unable to secure the funds for the

transcript. We disagree.
Tuscarawas County, Case No. 2014-AP-04-0014                                                  9


       {¶20} Civil Rule 53 provides that an objection to a magistrate’s factual finding,

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

relevant to that finding or affidavit of that evidence if a transcript is not available.” Civil

Rule 6(B) allows a trial court to extend the period for filing a transcript of proceedings.

Vance v. Ruso, 9th Dist. Summit No. 20442, 2001 WL 866277 (Aug. 1 2001). A court

may grant or deny an extension of time under Civil Rule 6(B) in its sound discretion.

Lamp v. Linton, 5th Dist. Guernsey No. 2011-CA-06, 2011-Ohio-6111.

       {¶21} In this case, appellant filed her objections, without a transcript, within

fourteen days of the magistrate’s decision as required by Civil Rule 53. Approximately

fifty days later and over sixty days after the magistrate issued her decision, appellant

filed a motion for extension of time to file transcript indicating she did not have the funds

to pay for the transcript deposit. The trial court did not rule on appellant’s objections

until over fifty days had elapsed from the date appellant filed her objections to the

decision of the magistrate. During this time, appellant had time to file the transcript or

request leave of court to file the transcript. To date, no transcript of the December 13,

2011 hearing was ever filed, or requested to be filed, with the trial court. Given the

foregoing facts, we find the trial court did not abuse its discretion in overruling

appellant’s motion for extension to file transcript. Appellant had ample time to file the

transcript before the trial court ruled on her objections to the magistrate’s decision. See

Lamp v. Linton, 5th Dist. Guernsey No. 2011-CA-06, 2011-Ohio-6111; Cunnane-Gygli v.

MacDougal, 11th Dist. Geauga No. 2004-G-2597, 2005-Ohio-3258.

       {¶22} Further, appellant could have, but did not, seek to file an affidavit of the

evidence under Civil Rule 53(D)(3)(b)(iii). See, e.g., State ex rel. Motley v. Capers, 23
Tuscarawas County, Case No. 2014-AP-04-0014                                      10


Ohio ST.3d 56, 491 N.E.2d 311 (1986) (holding that a transcript is “unavailable” for

purposes of App.R. 9(C) which allows the use of narrative statements when indigent

appellant is unable to bear the cost of providing transcript).

       {¶23} Accordingly, appellant’s third assignment of error is overruled.

       {¶24} Based on the foregoing, appellant’s assignments of error are overruled

and the March 11, 2014 judgment entry of the Tuscarawas County Court of Common

Pleas is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
