[Cite as Babcock v. Welcome, 2012-Ohio-5284.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     ROSS COUNTY

REBECCA LYNN BABCOCK,                 :    Case No. 11CA3273
                                      :
      Petitioner-Appellant,           :
                                      :    DECISION AND
      v.                              :    JUDGMENT ENTRY
                                      :
JULIE THERESA WELCOME,                :
                                      :    RELEASED 11/14/12
      Respondent-Appellee.            :
______________________________________________________________________
                            APPEARANCES:

Jack L. Moser, Jr., Gahanna, Ohio, for appellant.

Joshua M. Goodwin, Southeastern Ohio Legal Services, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    Rebecca Babcock, the mother of I.S. and E.S., appeals the trial court’s

denial of her motion to modify an order granting custody of the children to Julie

Welcome, their paternal grandmother. Babcock argues that the trial court committed

plain error when it found no change in circumstances that warranted modification had

occurred. She contends that such a change occurred when: 1) the children had

unexpected contact with their father after the initial custody order was issued, and 2)

Welcome interfered with her visitation rights. She argues that the evidence from the

motion hearing supports her argument. However, the transcript of this hearing is not

properly before us, so we cannot consider it. In the absence of any evidence to support

the purported errors, we must presume the validity of the trial court’s proceedings.

        {¶2}    Next, Babcock contends that the trial court should have found that the fact

that the children reached school age since the issuance of the initial custody order,
Ross App. No. 11CA3273                                                                       2


when combined with “other factors,” constituted a change in circumstances. However,

Babcock failed to demonstrate that any “other factors” exist to support such a finding.

Therefore, we also reject this argument.

                                           I. Facts

         {¶3}   Babcock and Brandon Stokes are the natural parents of I.S. and E.S. In

October 2006, a Minnesota court entered an order awarding physical custody of the

children to Welcome and joint legal custody of the children to Babcock and Welcome.

Stokes agreed to this arrangement. Evidently Welcome lived in Ohio at the time, and

the court ordered her to “make every effort to schedule visits with the children and their

maternal family members.” Shortly after the court entered the custody order, the

children moved to Ohio with Welcome.

         {¶4}   In 2008, Babcock filed a motion in the Minnesota court to request sole

physical and legal custody of the children. The Minnesota court declined to exercise

jurisdiction in the matter. The court concluded that Minnesota was an inconvenient

forum and that Ohio was a more appropriate forum for the motion because the children

had lived in Ohio for more than two years since the court issued the original custody

order.

         {¶5}   Subsequently, Babcock had the Minnesota custody order registered in

Ross County under R.C. 3127.35 and filed a motion to modify the order. She asked the

trial court to designate her as the residential parent and legal custodian of the children

and terminate Welcome’s rights. Alternatively, she sought parenting time and/or

visitation under Ross County’s standard visitation schedule. A magistrate conducted a

hearing on the motion. Subsequently, the magistrate issued a written decision denying
Ross App. No. 11CA3273                                                                               3


Babcock’s motion, concluding that no change in circumstances had occurred as

required by R.C. 3109.04(E)(1)(a). The trial court adopted the magistrate’s decision the

same day. Babcock filed a request for findings of fact and conclusions of law 11 days

later. Before the magistrate responded to this request, Babcock filed a notice of appeal.

                                     II. Assignments of Error

       {¶6}    Babcock assigns three errors for our review:

       I.      TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND RULED
               AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BY
               RULING THAT THE FACT THAT THE CHILDREN ARE NOW OF
               SCHOOL AGE DOES NOT CONSTITUTE A SUFFICIENT
               CHANGE IN CIRCUMSTANCES.

       II.     THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND
               RULED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
               WHEN IT RULED THAT BRANDON STOKES’ EXPOSURE TO
               THE CHILDREN DID NOT CONSTITUTE A CHANGE IN
               CIRCUMSTANCES.

       III.    THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND
               RULED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
               BY CONSIDERING THAT APPELLEE HAD NOT FAILED TO
               FULFILL HER OBLIGATIONS AS TO APPELLANT’S
               COMPANIONSHIP WITH THE CHILDREN.

                                     III. Standard of Review

       {¶7}    In each of her assignments of error, Babcock contends that the trial court

abused its discretion in various ways when it found no change in circumstances

warranting modification occurred and denied her motion.1 Generally, “[d]ecisions

concerning child custody matters rest within the sound discretion of the trial court.”

Eatherton v. Behringer, 3rd Dist. No. 13-11-12, 2012-Ohio-1584, ¶ 13, citing Miller v.

Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). “Custody determinations are some

1
 Babcock also contends this finding was against the manifest weight of the evidence. However, abuse of
discretion is the appropriate standard of review. Jones v. Jones, 4th Dist. No. 06CA25, 2007-Ohio-4255,
¶ 31-32, 41.
Ross App. No. 11CA3273                                                                       4


of the most difficult and agonizing decisions a trial judge must make, and, therefore,

appellate courts must grant wide latitude to their consideration of the evidence.” Id.,

citing Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Ordinarily,

“a reviewing court will not reverse a trial court’s decision regarding child custody absent

an abuse of discretion.” Id., citing Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d

665 (1994). The phrase “abuse of discretion” connotes an attitude on the part of the

court that is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980).

       {¶8}   “While a trial court’s discretion in a custody modification proceeding is

broad, it is not absolute, and must be guided by the language set forth in R.C. 3109.04.”

Miller at 74. R.C. 3109.04(E)(1)(a) provides:

       The court shall not modify a prior decree allocating parental rights and
       responsibilities for the care of children unless it finds, based on facts that
       have arisen since the prior decree or that were unknown to the court at the
       time of the prior decree, that a change has occurred in the circumstances
       of the child, the child’s residential parent, or either of the parents subject to
       a shared parenting decree, and that the modification is necessary to serve
       the best interest of the child. In applying these standards, the court shall
       retain the residential parent designated by the prior decree or the prior
       shared parenting decree, unless a modification is in the best interest of the
       child and one of the following applies:

       (i) The residential parent agrees to a change in the residential parent or
       both parents under a shared parenting decree agree to a change in the
       designation of residential parent.

       (ii) The child, with the consent of the residential parent or of both parents
       under a shared parenting decree, has been integrated into the family of
       the person seeking to become the residential parent.

       (iii) The harm likely to be caused by a change of environment is
       outweighed by the advantages of the change of environment to the child.

       {¶9}   Nonetheless, a party forfeits all but plain error on appeal if the party fails to
Ross App. No. 11CA3273                                                                         5


timely object to a magistrate’s decision on a R.C. 3109.04(E)(1)(a) motion. Juv.R.

40(D)(3)(b)(iv) provides: “Except for a claim of plain error, a party shall not assign as

error on appeal the court’s adoption of any factual finding or legal conclusion, whether

or not specifically designated as a finding of fact or conclusion of law under Juv.R.

40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Juv.R. 40(D)(3)(b).” “In appeals of civil cases, the plain error doctrine is not favored and

may be applied only in the extremely rare case involving exceptional circumstances

where error, to which no objection was made at the trial court, seriously affects the

basic fairness, integrity, or public reputation of the judicial process, thereby challenging

the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio

St.3d 116, 679 N.E.2d 1099 (1997), syllabus.

       {¶10} Babcock claims that her objections were timely because she made a

timely request for findings of fact and conclusions of law and made her objections within

fourteen days after the magistrate filed a decision containing the requested information.

Under Juv.R. 40(D)(3)(a)(ii), “a magistrate’s decision may be general unless findings of

fact and conclusions of law are timely requested by a party or otherwise required by

law. A request for findings of fact and conclusions of law shall be made before the entry

of a magistrate’s decision or within seven days after the filing of a magistrate’s

decision.” Juv.R. 40(D)(3)(b)(i) states: “A party may file written objections to a

magistrate’s decision within fourteen days of the filing of the decision, whether or not the

court has adopted the decision during that fourteen-day period as permitted by Juv.R.

40(D)(4)(e)(i). * * * If a party makes a timely request for findings of fact and conclusions

of law, the time for filing objections begins to run when the magistrate files a decision
Ross App. No. 11CA3273                                                                        6


that includes findings of fact and conclusions of law.”

       {¶11} Here, the magistrate issued a decision on July 22, 2011, and the trial court

adopted it the same day, which it had authority to do under Juv.R. 40(D)(4)(e)(i).

Babcock had to request findings of fact and conclusions of law within seven days after

the filing of a magistrate’s decision, i.e., by July 29, 2011. She did not file her request

until August 2, 2011, and she did not request the court’s permission to make a belated

request under Juv.R. 18(B).

       {¶12} Babcock contends that the time for filing should have been extended by

three days under Civ.R. 6(E). Because a juvenile court heard this case, Babcock

should have cited Juv.R. 18(E)’s similar three-day rule, which provides: “Whenever a

party has the right or is required to do an act within a prescribed period after the service

of a notice or other paper upon the person and the notice or other paper is served upon

the person by mail, three days shall be added to the prescribed period.” However, even

if we presume this rule applies, Babcock would have needed to file her request by

August 1, 2011. In other words, even if we extended the time for filing the request by

three days, it would still be untimely.

       {¶13} Because Babcock failed to make a timely request for findings of fact and

conclusions of law, she had to file her written objections to the magistrate’s decision

within fourteen days of the filing of that decision, i.e., by August 5, 2011. She failed to

do so. Instead, on August 23, 2011, she filed her notice of appeal. Even though the

magistrate had not responded to Babcock’s request for findings of fact and conclusions

of law yet, that fact did not prevent this court from assuming jurisdiction over this case

because Babcock’s request was untimely. See, by way of analogy, Caruthers v.
Ross App. No. 11CA3273                                                                          7

Caruthers, 4th Dist. No. 00CA09, 2001 WL 243407, *2-3 (Jan. 25, 2001) (Explaining

that a judgment entry is not a final, appealable order when a timely Civ.R. 52 motion for

findings of fact and conclusions of law is pending but is final if the motion is untimely).

       {¶14} Apparently, on September 9, 2011, the magistrate did issue findings of

fact and conclusions of law, and Babcock filed objections less than fourteen days later.

The trial court declined to rule on the objections on the grounds that the filing of the

notice of appeal deprived it of jurisdiction. The appellate record does not contain any of

these documents. However, even if we presume their existence, “[t]he filing of a notice

of appeal deprives a trial court of jurisdiction to grant any relief inconsistent with an

appellate court's ability to affirm, modify or reverse the judgment being appealed.” State

v. Scheutzman, 4th Dist. No. 07CA22, 2008-Ohio-6096, ¶ 6. “The review and

determination of objections to a Magistrate's Decision is inconsistent with an appeal

because objections are directed at the substance of the judgment appealed and the

issues raised on appeal.” Arthur v. Trimmer, 5th Dist. No. 02CA06029, 2003-Ohio-

2034, ¶ 13 (Although the Arthur Court made this statement in the context of Civ.R. 53,

we find it applies equally to Juv.R. 40). Therefore, the trial court did lack jurisdiction to

consider any objections Babcock filed after her notice of appeal.

       {¶15} Because Babcock failed to timely file objections to the magistrate’s

decision, we conclude that plain error analysis applies to her assignments of error.

              IV. Appellate Consideration of the Transcript of Proceedings

       {¶16} Before we address the merits of the assignments of error, we must

address another preliminary matter. Welcome contends that in reviewing the

assignments of error, we may not consider the transcript of the hearing on Babcock’s
Ross App. No. 11CA3273                                                                     8


motion. This transcript is part of the record on appeal because we granted Babcock

leave to supplement the record with it. However, our review of the record indicates that

this transcript was not actually before the trial court when it adopted the magistrate’s

decision. Babcock never filed the transcript prior to filing her notice of appeal. Under

these circumstances, “this court will not review the transcript on appeal because our

decision would then be predicated upon materials that the trial court did not have the

opportunity to review in rendering its judgment.” Molnar v. Molnar, 9th Dist. No. 3102-

M, 2001 WL 688898, *2 (June 20, 2001). “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, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978), paragraph one of the syllabus. Therefore, we will not consider this

transcript in ruling on Babcock’s assignments of error.

                               V. Change in Circumstances

       {¶17} Before a court can modify a prior decree under R.C. 3109.04(E)(1)(a), it

must find that “based on facts that have arisen since the prior decree or that were

unknown to the court at the time of the prior decree, that a change has occurred in the

circumstances of the child, the child’s residential parent, or either of the parents subject

to a shared parenting decree[.]” The trial court denied Babcock’s motion because it

determined there was “insufficient evidence to find that the children’s circumstances

have changed * * *.” Babcock contends that the court committed plain error when it

made this determination because numerous changes occurred.

       {¶18} “[A] change in circumstances is a threshold requirement intended to

provide some stability to the custodial status of the child.” Thebeau v. Thebeau, 4th
Ross App. No. 11CA3273                                                                    9

Dist. No. 07CA34, 2008-Ohio-4751, ¶ 29 (per curiam), citing In re Braydon James, 113

Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 15. “Because of this need for

stability in the child’s life, any change in circumstances must be substantive and

significant.” Id. R.C. 3109.04 does not define what constitutes a change of

circumstances. Courts have generally interpreted the phrase to mean “ ‘an event,

occurrence, or situation which has a material and adverse effect upon a child.’ ”

Roberts v. Bolin, 4th Dist. No. 09CA44, 2010-Ohio-3783, ¶ 27, quoting In re M.D.D.,

12th Dist. No. CA2009-06-170, 2010-Ohio-326, ¶ 22.

    A. The Children’s Interaction with Brandon Stokes and Visitation with Babcock

       {¶19} In the second assignment of error, Babcock contends that the court

committed plain error when it found the children’s exposure to their father after the

Minnesota decree was issued did not constitute a change in circumstances. In the third

assignment of error, Babcock argues that the court committed plain error when it found

her claim that Welcome failed to fulfill her obligations as to Babcock’s companionship

with the children was unsupported by the evidence and did not amount to a change in

circumstances. She argues that these conclusions are not supported by the evidence

adduced at the modification hearing.

       {¶20} However, the appellant has the duty to provide a transcript for appellate

review. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384

(1980) (per curiam). “This is necessarily so because an appellant bears the burden of

showing error by reference to matters in the record.” Id. “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
Ross App. No. 11CA3273                                                                   10


court has no choice but to presume the validity of the lower court’s proceedings, and

affirm.” Id. As we explained above, even though a transcript of the modification hearing

appears in the appellate record, we cannot consider it because the trial court did not

have access to it in reaching its decision. Obviously, we cannot find that the trial court

committed “plain error” based on evidence that was not before it. Absent a transcript,

Babcock cannot support the purported errors and rebut the presumption of validity.

       {¶21} In her reply brief, Babcock suggests the 2006 and 2008 Minnesota court

orders in the record prove Welcome interfered with her visitation rights. However, this is

not the case. The 2006 order indicates that Welcome “shall make every effort to

schedule visits with the children and their maternal family members.” The 2008 order

mentions Babock’s allegations that Welcome failed to do this, but as the court clearly

states, those were simply allegations. The Minnesota court did not consider the merits

of Babcock’s allegations – it concluded an Ohio court should do that. Thus, the 2006

and 2008 orders do not support Babcock’s argument.

       {¶22} Because Babcock failed to file timely objections, the court was free to

adopt the magistrate’s decision unless the court determined there was an error of law or

other defect evident on the face of the magistrate’s decision. Juv.R. 40(D)(4)(c).

Babcock does not contend that such an error or defect exists, nor do we observe one.

Accordingly, we overrule the second and third assignments of error.

                                  B. Age of the Children

       {¶23} In her first assignment of error, Babcock contends that the trial court

committed plain error when it found that the children’s attainment of school age did not

constitute a change in circumstances. However, in her argument, Babcock
Ross App. No. 11CA3273                                                                     11


acknowledges that a change in circumstances does not automatically occur anytime a

child starts school. (Reply Br. 2). Instead, she argues that the fact that the children

reached school age, when combined with other factors, constitutes a change in

circumstances.

       {¶24} She cites one case from this district, Wilson v. Wilson, 4th Dist. No.

09CA1, 2009-Ohio-4978, for the proposition that “while a change in the child’s age

alone is not dispositve of a change in circumstances, a child’s maturation, when coupled

with other factors, may establish a change in circumstances.” (Appellant’s Br. 2). In

Wilson, we did state that “[t]he passage of time, standing alone, * * * is not sufficient to

demonstrate a change in circumstance.” Id. at ¶24. We also stated that, “[a] child’s

maturation along with other factors, * * * may establish a sufficient change in

circumstances.” Id.

       {¶25} Babcock contends that “[t]he maturation of [I.S. and E.S.], when coupled

with other factors, including reaching school age, most certainly establishes a change in

circumstances that warrants a review as to what is in the best interests of the children.”

(Appellant’s Br. 2). Babcock apparently claims that the maturation of the children and

the fact that they reached school age constitute two independent factors. We disagree.

Babcock’s only basis for stating that the children have matured is the fact that they have

reached school age. Thus, she is just stating the same factor in different ways.

       {¶26} In her reply brief, Babcock argues that “additional factors” include the

children’s exposure to their father and Welcome’s interference with her visitation rights.

(Reply Br. 3). However, the trial court generally concluded there was insufficient

evidence to find that a change in circumstances occurred. The court specifically found
Ross App. No. 11CA3273                                                                    12


that Babcock’s claim that Welcome “failed to fulfill her obligations as to [Babcock’s]

companionship with the children” was not supported by the evidence. And the court

found that the father’s exposure to the children had not “been shown to create a

‘likelihood of harm to the safety, health, and well being of the children’ as [Babcock]

argues.” Again, because the transcript of proceedings is not properly before us,

Babcock cannot demonstrate that the court erred when it made these findings. See the

discussion in Sections IV. and V.A. above. Babcock failed to show that any factor other

than the children reached school age supports the conclusion that a change in

circumstances occurred. Therefore, we overrule the first assignment of error.

                                      VI. Conclusion

       {¶27} Having overruled each of the assignments of error, we affirm the trial

court’s judgment.

                                                                 JUDGMENT AFFIRMED.
Ross App. No. 11CA3273                                                                 13


                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.



                                          For the Court


                                          BY: ____________________________
                                              William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
