[Cite as Williams v. Williams, 2014-Ohio-5321.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


KELLY WILLIAMS                                    :   JUDGES:
                                                  :
                                                  :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                         :   Hon. Patricia A. Delaney, J.
                                                  :   Hon. Craig R. Baldwin, J.
-vs-                                              :
                                                  :   Case No. 2014CA00053
                                                  :
MICHAEL WILLIAMS                                  :
                                                  :
                                                  :
       Defendant-Appellant                        :   OPINION


CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court of
                                                      Common Pleas, Family Court Division,
                                                      Case No. 2007DR00295



JUDGMENT:                                             AFFIRMED




DATE OF JUDGMENT ENTRY:                               November 24, 2014




APPEARANCES:

For Plaintiff-Appellee:                               For Defendant-Appellant:

DAVID E. BUTZ                                         GERALD B. GOLUB
KRUGLIAK, WILKINS et al.                              1340 Market Ave. North, Suite 1
4775 Munson St. N.W.                                  Canton, OH 44714
P.O. Box 36963
Canton, OH 44735-6963
Stark County, Case No. 2014CA00053                                                    2

Delaney, J.

       {¶1} Defendant-appellant Michael Williams (Husband) appeals from the

January 22, 2014 Magistrate’s Order/Decision of the Stark County Court of Common

Pleas, Family Court Division. Plaintiff-appellee (Wife) is Kelly Williams.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are drawn, in part, from our opinion in the first appeal

of this matter, Williams v. Williams, 5th Dist. Stark No. 2013CA00093, 2013-Ohio-5156.

       {¶3} Husband and Wife were married on September 30, 2000 and three

children were born of the marriage. Wife filed a complaint for divorce on March 8, 2007

and a decree of divorce was granted on January 3, 2008. Incorporated into the decree

was the parties’ shared parenting plan providing for a deviation from the child support

guidelines, requiring Husband to pay $180.00 per month per child or $540.00 total per

month.    On February 23, 2009, the parties filed another shared parenting plan

containing the same child support amount.

                     CSEA Administrative Hearing and Husband’s Objection

       {¶4} On September 18, 2012, an administrative hearing on the issue of child

support was held upon Husband's request. In a report filed September 28, 2012, the

hearing officer recommended the modification of child support to $1,199.08 per month

with insurance or $1,200.04 per month plus a cash medical of $189.83 per month

without insurance.

       {¶5} Husband filed objections to the findings and recommendations of the

Hearing Officer on the following grounds:
Stark County, Case No. 2014CA00053                                                  3


             1) “The parties herein have a Shared Parenting Plan. Under the

             terms of that plan [Husband] has the parties minor children with him

             more than fifty percent of the time.      The parties had initially

             requested a deviation which would permit [Wife] to receive some

             child support. Under the circumstances herein [Husband] should

             actually be receiving child support as the parent of the children;”

             and

             2) “The amount determined by the hearing officer does not take

             into consideration that there has been a Shared Parenting

             Agreement in effect in this matter which leaves the children a large

             portion of the time with [Husband].”

             (Husband’s Objection, October 4, 2012).

                   Magistrate’s Hearing of January 10, 2013 and Objections

      {¶6} Husband objected to the report of the C.S.E.A. Administrative Officer and

a hearing was held before the magistrate on January 10, 2013. Husband’s net pay was

repeatedly stipulated as $74,898. (T. 5, 19, 28). The arguments before the magistrate

were whether Wife’s childcare expenses had been reduced; the extent to which

Husband’s health insurance expenses had changed; and the relative amounts of time

each parent spent with the children.

      {¶7} By judgment entry filed January 25, 2013, the magistrate deviated from

the child support guidelines and ordered Husband to pay child support in the amount of

$854.00 per month with insurance or $786.47 per month plus a cash medical of $188.00

per month without insurance.
Stark County, Case No. 2014CA00053                                                     4


       {¶8} Wife filed objections to the magistrate’s order arguing Husband’s income

increased by 50% but hers remained the same; some of the reasons for the deviation

no longer apply; and the magistrate should have awarded the guideline support amount

of $1,273 per month or followed the deviation the parties previously agreed to (which

would have resulted in a support amount of $925 per month). Husband responded that

the downward deviation was still appropriate and not an abuse of discretion because he

had the children more than 50 percent of the time and the parties agreed to the

deviation.

                      The Trial Court Corrects Calculation of the Deviation

       {¶9} A hearing before the trial court was held on April 12, 2013. By judgment

entry filed April 22, 2013, the trial court corrected the magistrate's decision on the

calculation of the deviation only and ordered Husband to pay child support in the

amount of $924.43 per month with insurance or $873.36 per month plus a cash medical

of $212.58 per month without insurance.        The trial court found the only change of

circumstances is the increase in Husband’s income and concluded the same deviation

calculation the parties originally agreed to should apply. The calculation ordered by the

trial court, therefore, is: $15,280.34 - $4,187.20 = $11,093.14/12 = $924.43 per month.

Further, “there should be no deviation of the cash medical as the justification for the

deviation in part relies on health insurance provided by [F]ather.”

                    The First Appeal: We Order the Trial Court to State Its
                           Reasons for Deviation with Particularity

       {¶10} Husband appealed the April 22, 2013 judgment entry of the trial court and

raised two assignments of error:
Stark County, Case No. 2014CA00053                                                    5


             1) “the trial court erred in not adopting the magistrate’s decision of

             January 25, 2013 which was not required to enumerate finding of

             every factor for a deviation of the amount of child support to be paid

             and by not properly taking in consideration all factors considered;”

             and

             2) “the court erred in not complying with Section 3119.24 Ohio

             Revised Code by not making a determination that the amount of

             child support would be unjust or inappropriate and would not be in

             the best interest of the child, and findings of fact supporting its

             determination.”

      {¶11} In our decision of November 18, 2013, we found Husband’s second

assignment of error to be dispositive because neither the magistrate nor the trial court

stated with particularity the reasons for the deviation. Williams v. Williams, 5th Dist.

Stark No. 2013CA00093, 2013-Ohio-5156, ¶ 12. We reversed the trial court’s decision

and remanded the matter “for findings under R.C. 3119.24.” Id.

                                 Proceedings upon Remand

      {¶12} A trial court order filed November 22, 2013, states “Matter remanded to

Magistrate McFarren for findings consistent with the Court of Appeals decision.       If

hearing is required, matter shall be heard on December 17, 2013 at 11:30 a.m.” The

record is silent as to whether any hearing occurred on that date.1 Instead, the record

contains a “Memorandum in Support of [Husband’s] Position as to Amount of Child



1
 Wife’s Objection dated January 31, 2014 states the magistrate conducted a hearing on
December 17, 2013 but no party requested the opportunity to present additional
evidence. No transcript has been provided of this hearing.
Stark County, Case No. 2014CA00053                                                       6


Support,” in which Husband argues the trial court used the wrong “multiplier” to

determine the amount of the deviation and should have used a multiplier of .581069.

Wife responded this position violates the parties’ agreement and is not logical.

       {¶13} On January 22, 2014, a magistrate’s order approved by the trial court was

filed stating the magistrate’s findings in support of the deviation: the parties agreed to

the deviation due to Husband’s extra time with the children and his expense in

maintaining health coverage for the children; therefore, the guideline amount is unjust or

inappropriate and not in the best interest of the children. The guideline amount is

$1273.36 per month, but using the deviation agreed to by the parties, the calculation is:

$15,280.34 - $4,187.20 = $11,093.14/12 = $924.43 per month. Further, there is no

deviation of the cash medical because the justification for the deviation in part relies on

the expense of health insurance provided by [H]usband.

            Husband’s Objections: Requests $12,929 to be deducted from Income

       {¶14} On January 28, 2014, Husband objected to the magistrate’s decision,

arguing for the first time his 2011 Federal Tax filing indicates he is entitled to a

deduction of $12,929 from his net income of $74,898 due to motor vehicles, safety

equipment, tools, work boots, and clothing. Husband also argued the CSEA Hearing

Officer should have taken evidence regarding Wife’s alleged reduced child care

expenses.    Finally, Husband claimed, the “multiplier” used by the court again was

incorrect. Wife also objected to the magistrate’s decision only on the ground she should

have been granted attorney’s fees and argued Husband was attempting to present new

evidence and introduce new arguments.
Stark County, Case No. 2014CA00053                                                     7


         {¶15} A hearing on the parties’ objections was held before the trial court on

March 3, 2014. Husband argued the magistrate should have taken evidence as to his

vehicle expenses and the multiplier was wrong. The trial court responded Husband was

attempting to raise arguments he didn’t raise before the magistrate, or in the original

proceedings and resulting appeal. The trial court also pointed out no “multiplier” was

used in the court’s calculations; the formula is a simple algebraic equation of Husband’s

obligation minus Wife’s obligation using the new figures.

         {¶16} Husband now appeals from the January 22, 2014 Decision of the trial

court.

         {¶17} Husband raises two assignments of error:

                              ASSIGNMENTS OF ERROR

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

FAILING TO CONSIDER APPELLANT’S DOCUMENTED WORK EXPENSES,

CONTRIBUTION FOR SCHOOL SUPPLIES AND COST OF EXTRACURRICULAR

ACTIVITIES, AND IN FAILING TO CONSIDER APPELLEE’S REDUCED CHILD CARE

EXPENSES WHEN CALCULATING CHILD SUPPORT.”

         {¶19} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FAILING TO SET FORTH SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF

LAW IN ITS ORDER RECALCULATING CHILD SUPPORT.”

                                       ANALYSIS

                                            I.

         {¶20} In his first assignment of error, Husband argues the trial court erred in

failing to consider factors including work expenses and contributions toward school
Stark County, Case No. 2014CA00053                                                     8


supplies and extracurricular activities when calculating child support. These factors

were not properly raised below and we therefore disagree.

       {¶21} As the trial court pointed out, Husband’s objections of January 28, 2014

raised issues that were not first raised before the magistrate, including factors Husband

alleges the C.S.E.A. Hearing Officer should have taken into account in reducing his

income from $74,898. We note Husband repeatedly stipulated to his income at the

hearing before the magistrate on January 10, 2013, and these purported deductions

were not raised in subsequent objections thereto or in the first appeal.

       {¶22} The matter of purported deductions from Husband’s income is therefore

res judicata. Issues that could have been, but were not, raised in previous appeals are

res judicata.   Campbell v. Campbell, 5th Dist. Licking No. 06CA85, 2007-Ohio-2175;

see also, Carpenter v. Carpenter, 7th Dist. Noble Nos. 11 NO 387 and 11 NO 388,

2012-Ohio-4567. “Res judicata” is defined as “[a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action.” Grava v.

Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus.

       {¶23} We decline to reach the merits of whether the claimed amounts should be

deducted from Husband’s stipulated income, for the first time, as that issue is res

judicata. Husband’s first assignment of error is overruled.

                                                II.

       {¶24} In his second assignment of error, Husband challenges the magistrate’s

findings as approved by the trial court resulting from our remand in the first appeal. We
Stark County, Case No. 2014CA00053                                                     9


note, though, Husband has not provided the record of the hearing before the magistrate

on December 17, 2013.2

      {¶25} No transcript of the hearing before Magistrate McFarren was filed

pursuant to Civ.R. 53(D)(3)(b)(iii) in the trial court. Husband also failed to request a

transcript pursuant to App.R. 9(B) or submit a statement of evidence pursuant to App.R.

9(C). When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus, as to

those assigned errors, the court has no choice but to presume the validity of the lower's

court proceedings, and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d

197, 400 N.E.2d 384. Wife directs us to Wade v. Wade, wherein the Court stated:

             We are aware that the trial court is required to undertake an

             independent    analysis   to   determine    whether    the   referee's

             recommendations should be adopted pursuant to Civ.R. 53,

             regardless of whether any party filed any objections or related

             transcripts. However, absent a transcript or appropriate affidavit as

             provided in the rule, a trial court is limited to an examination of the

             referee's conclusions of law and recommendations, in light of the

             accompanying findings of fact only unless the trial court elects to

             hold further hearings.




2
 Wife’s Objection dated January 31, 2014 states the magistrate conducted a hearing on
December 17, 2013 but no party requested the opportunity to present additional
evidence. In such case, Husband would have waived his argument the trial court
should have taken additional evidence. See, In Matter of Perez Richland County
Services Board, 5th Dist. Richland No. CA 1937, unreported, 1981 WL 6167 (Mar. 9,
1981).
Stark County, Case No. 2014CA00053                                                    10

             Wade v. Wade, 113 Ohio App. 3d 414, 418, 680 N.E.2d 1305 (11th

             Dist.1996).

      {¶26} Because Husband failed to provide the lower court, and this Court, with

those portions of the transcript necessary for resolution of his second assignment of

error, we must presume the regularity of the proceedings below and affirm pursuant to

the directives set forth in Knapp, supra. See also, Williams v. Williams, 5th Dist. No.

2013 AP 07 0027, 2013-Ohio-5861.

      {¶27} Husband implies our remand required the taking of additional evidence.

As we have previously stated, however, “[u]pon remand from an appellate court, the

lower court is required to proceed from the point at which the error occurred.” Batten v.

Batten, 5th Dist. Fairfield No. 11-CA-1, 2011-Ohio-3803, ¶ 20, citing State ex rel.

Stevenson v. Murray, 69 Ohio St.2d 112, 113, 431 N.E.2d 324 (1982). This Court

remanded the matter “for findings under R.C. 3119.24.” Williams, supra, 2013-Ohio-

5156 at ¶ 15.     “A remand for ‘further proceedings' should not be interpreted as a

remand for ‘further hearings' where no further hearings would have been required from

the point of error forward”. In re Swingle, 5th Dist. Muskingum No. CT08–0060, 2009–

Ohio–1194 at ¶ 12.

      {¶28} In light of Husband’s failure to comply with Civ.R. 53(D)(3)(b)(iii) and

App.R. 9(B), his second assignment of error is overruled.
Stark County, Case No. 2014CA00053                                                11


                                      CONCLUSION


       {¶29} Husband’s two assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas, Family Court Division is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.
