[Cite as Balsley v. Ward, 2013-Ohio-4618.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CHRISTOPHER M. BALSLEY                       :      JUDGES:
                                             :
                                             :      Hon. William B. Hoffman
        Plaintiff - Appellant                :      Hon. Patricia A. Delaney
                                             :      Hon. Craig R. Baldwin
                                             :
-vs-                                         :
                                             :
YVONNE E. WARD                               :      Case No. CT2013-0025
                                             :
                                             :
        Defendant - Appellee                 :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Domestic
                                                    Relations Division, Case No.
                                                    JV098400028




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   October 16, 2013




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

CHRISTOPHER BALSLEY, PRO SE                         BRIAN W. BENBOW
2476 Michael Drive                                  Benbow Law Offices
Zanesville, OH 43701                                605 Market St.
                                                    Zanesville, OH 43701
Muskingum County, Case No. CT2013-0025                                                 2




Baldwin, J.

   {¶1}       Plaintiff-appellant Christopher Balsley appeals from the May 16, 2013

Judgment Entry of the Muskingum County Court of Common Pleas, Domestic Relations

Division.

                        STATEMENT OF THE FACTS AND CASE

   {¶2}       Appellant and appellee Yvonne Ward are the parents of Taelee (DOB

9/19/98). Appellee was designated the child’s residential parent and legal custodian and

appellant was granted parenting time.

   {¶3}       On November 14, 2012, appellant filed a Verified Motion for Contempt

against appellee.   Appellant, in his four-branch motion, alleged that appellee had

violated the trial court’s parenting time order. Appellee, on January 25, 2013, filed a

Motion to Dismiss appellant’s motion for failure to state a claim upon which relief could

be granted.    Pursuant to a Magistrate's Decision filed on February 26, 2013, the

Magistrate recommended that two of the branches be dismissed for failure to state a

claim upon which relief can be granted and that a hearing be scheduled on the third

branch of appellant’s motion. Appellant, in such branch, had alleged that appellee had

violated the trial court’s parenting time order by sending him information through the

child rather than communicating with him directly about a Washington, DC school trip.

The Magistrate further noted that appellant had dismissed the fourth branch of his

motion. As memorialized in a Judgment Entry filed on February 26, 2013, the trial court

approved and adopted the Magistrate’s Decision. Appellant did not file objections to

such Decision.
Muskingum County, Case No. CT2013-0025                                                     3


   {¶4}          On March 7, 2013, appellant filed a motion for discovery. Appellee, on

March 22, 2013, filed a list of witnesses that she intended to call at the contempt

hearing. Thereafter, on March 25, 2013, appellant filed a motion for a continuance of

the March 29, 2013 contempt hearing due to the trial court’s failure to rule on his motion

for discovery.

   {¶5}          The Magistrate, in a Decision filed on May 1, 2013, recommended that

appellant’s motion for contempt be dismissed. The Magistrate found that the evidence

demonstrated that appellant had learned from the parties’ child that she did not want to

go on the trip to Washington, DC and that the child was not carrying any message from

appellee to appellant. The Magistrate found that appellant had failed to show by clear

and convincing evidence that appellee had violated the trial court’s order by using the

child as a conduit to send a communication from her to appellant.

   {¶6}          Appellant, on May 13, 2013, filed objections to the Magistrate’s Decision.

Appellant, in his objections, argued that “[h]ad the court ruled on the Plaintiff Motion [for

discovery] the misunderstanding wouldn’t have taken place. The appropriate people

would have been present and the outcome would have been different.”           Pursuant to a

Judgment Entry filed on May 16, 2013, the trial court overruled the objections and

approved and adopted the Magistrate’s Decision. The trial court, in its Judgment Entry,

stated, in relevant part, as follows:

   {¶7}          “Civil Rule 53(D)(3)(b)(ii) states that ‘an objection to a Magistrate’s

Decision shall be specific and state with particularly all grounds for the objection’. If the

Plaintiff has done so, the Court is not able to identify the specific objection within the

pleading filed. In addition, if the objection is to a factual finding, the objection must be
Muskingum County, Case No. CT2013-0025                                                   4


supported by a transcript of evidence relative to the finding and, although the Plaintiff

indicated in his previous pleading that he had transcripts, no transcript was provided to

support this objection nor did he reference any particular testimony to support the

finding that the Magistrate had made an improper finding of fact.

   {¶8}       “Interpreting Plaintiff’s pleading in a way most favorable to him, the Court

finds that the pleading filed May 13, 2013 is an objection to the Magistrate’s Decision of

May 1, 2013. The Court further finds that the Plaintiff has failed to be specific and state

with particularity the grounds for his objection and to provide any transcript to support

claims of factual errors by the Magistrate. Accordingly, Plaintiff’s objection is overruled

and the Court hereby approves and adopts the Magistrate’s Decision of May 1, 2013 as

the final order of the Court.”

   {¶9}       Appellant filed an appeal, but did not list any assignments of error as

required by App.R. 16(A)(3). Appellant appears to be arguing that the trial court erred in

not continuing the hearing when appellant did not have appropriate discovery.

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

discretion. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). 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, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

   {¶11}      As is stated above, appellant filed his Motion for Contempt on November

14, 2012 but did not file a Motion for Discovery until March 7, 2013, approximately three

weeks before the scheduled hearing. Appellee, on March 22, 2013, filed a witness list.
Muskingum County, Case No. CT2013-0025                                               5


Three days later, appellant filed a motion for a continuance of the March 29, 2013

hearing.

   {¶12}     There is no evidence in the record that appellant had served written

discovery requests on appellee. Nor is there evidence that appellant had filed a motion

to compel prior to the hearing. Moreover, as noted by appellee, “if discovery had not

been provided, Appellant could have dismissed his motion and refilled (sic) it a later

time; he was not forced to go to trial. The Magistrate did not abuse his discretion in

denying a continuance given that it was not timely requested.” We find that the trial

court’s decision to proceed with the hearing was not arbitrary, unconscionable or

unreasonable.

   {¶13}     Appellant’s assignment of error is, therefore, overruled.

   {¶14}     The judgment of the Muskingum County Court of Common Pleas,

Domestic Relations Division is affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.


                                           HON. CRAIG R. BALDWIN



                                           HON. WILLIAM B. HOFFMAN



                                           HON. PATRICIA A. DELANEY



CRB/dr
[Cite as Balsley v. Ward, 2013-Ohio-4618.]


                IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


CHRISTOPHER M. BALSLEY                          :
                                                :
        Plaintiff - Appellant                   :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
YVONNE W. E. WARD                               :
                                                :
        Defendant - Appellee                    :       CASE NO. CT2013-0025


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

judgment of the Court of Common Pleas of Muskingum County, Ohio, Domestic

Relations Division, is affirmed. Costs assessed to appellant.




                                             HON. CRAIG R. BALDWIN



                                             HON. WILLIAM B. HOFFMAN



                                             HON. PATRICIA A. DELANEY
