[Cite as Rothwell v. Rothwell, 2013-Ohio-457.]


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

MICHELLE L. ROTHWELL,          :
                               :
     Plaintiff-Appellee,       :    Case No. 12CA6
                               :
     vs.                       :
                               :    DECISION AND
MARK E. ROTHWELL, ET AL.,      :    JUDGMENT ENTRY
                               :
     Defendants-Appellants.    :    Released: 01/29/13
_____________________________________________________________

                                      APPEARANCES:

Kinsley F. Nyce, Columbus, Ohio, for Appellant, Mark E. Rothwell.

Jacqueline L. Kemp, Kemp, Schaeffer & Rowe Co., L.P.A., Columbus,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

         {¶ 1} Appellant, Mark E. Rothwell, appeals the judgment entry of

the Pickaway County Court of Common Pleas, Division of Domestic

Relations, issuing a decree of divorce as between Appellant, and Appellee,

Michelle L. Rothwell. On appeal, Appellant essentially contends in his first

and second assignments of error that the trial court erred in failing to record

the four day final divorce hearing. Appellant further contends in his third

assignment of error that the trial court’s division of assets and liabilities of

the parties was in contravention of the evidence presented at the final
Pickaway App. No. 12CA6                                                         2


hearing. Because the trial court was not required to record the proceedings

absent a request by one of the parties to do so, we cannot conclude that the

trial court erred. As such, Appellant’s first and second assignments of error

are overruled. Further, in the absence of a transcript, because Appellant

failed to provide an affidavit of the evidence pursuant to Civ.R.

53(D)(3)(b)(iii) in conjunction with his objections to the magistrate’s

decision, and also failed to file a statement of the evidence pursuant to

App.R. 9(C) on appeal, we must presume the regularity of the proceedings

below. Thus, Appellant’s third assignment of error is also overruled.

Accordingly, the decision of the trial court is affirmed.

                                     FACTS

      {¶ 2} The parties were married on November 14, 1998, and separated

on November 14, 2009. Appellee, Michelle Rothwell, filed a complaint for

divorce on December 30, 2009, naming as defendants her husband and

Appellant herein, Mark Rothwell, as well as Grove City Garage Door, Inc.,

the company jointly owned by the parties. Appellant, Mark Rothwell, filed

his answer and counterclaims to the complaint for divorce on February 11,

2010. Discovery between the parties ensued and the matter was scheduled

for a final divorce hearing before the magistrate beginning on April 25,
Pickaway App. No. 12CA6                                                                                    3


2011.1 After the presentation of evidence, the parties’ respective counsel

submitted written closing arguments.

         {¶ 3} On October 28, 2011, a magistrate’s decision, including

findings of fact and conclusions of law, was filed which divided the parties’

marital assets and debt. Appellant filed his objections to the magistrate’s

decision on November 14, 2011. Appellee in turn filed her response to

Appellant’s objections, as well as her own objections. A review of the

record reveals that Appellant did not request or file a copy of the transcript

in conjunction with the filing of his objections. Further, in the absence of

the transcript, Appellant also failed to file an affidavit of the evidence

pursuant to Civ.R. 53(D)(3)(b)(iii). On November 29, 2011, the trial court

issued a decision and entry overruling Appellant’s objections and affirming

the magistrate’s decision. In reaching its decision, the trial court stated as

follows:

         “It is noted that a transcript of the final hearing was not

         requested by the Defendant. Lacking a transcript, this Court

         will rely on the findings of fact outlined in the Magistrate’s

         Decision and the evidence contained in the file.”



1
 The final hearing consisted of four days of testimony taken on April 25, April 26, June 9, and June 10,
2011.
Pickaway App. No. 12CA6                                                           4


Subsequently, on December 20, 2011, Appellant filed a motion for leave to

have the transcript he had ordered that same day made available to the trial

court for consideration. Appellee opposed the motion. The trial court

implicitly denied Appellant’s motion by virtue of its issuance of a judgment

entry – decree of divorce on February 29, 2012.

      {¶ 4} Appellant filed his notice of appeal on March 27, 2012,

indicating in his statement, praecipe, and notice to the court reporter that he

intended file a complete transcript of the proceedings. Subsequently, on

April 11, 2012, the court reporter filed an affidavit stating that a record of

the four days of the final divorce hearing was not available, due to a

malfunction of the recording equipment. Further, a notice of transmission of

the record was filed on May 8, 2012, indicating that it did not include a

transcript of the proceedings. Appellate briefs were filed and the matter

was heard on oral argument August 30, 2012. Then, on September 5, 2012,

Appellant filed a motion requesting that he be permitted to file a statement

of the evidence on appeal. By a magistrate’s order dated September 12,

2012, this Court initially granted Appellant’s motion; however, upon the

objection of Appellee and after further consideration, we denied Appellant’s

motion, because the matter had already been submitted for decision. Thus,
Pickaway App. No. 12CA6                                                         5


the appeal proceeded without a transcript, or an alternative App.R. 9(C)

statement of the evidence.



                     ASSIGNMENTS OF ERROR I AND II

      {¶ 5} Because Appellant’s first and second assignments of error

advance essentially the same argument, we will address them together. As

stated above, taken together, Appellant’s first and second assignments of

error essentially contend that the trial court erred in failing to record the

parties four day final divorce hearing. In support of this argument,

Appellant cites us to the Supreme Court of Ohio Sup.R. 11(A)-(F), which he

claims “requires” that a record of proceedings be made and maintained.

Appellant further argues that because the trial court failed to record the

proceedings, this Court should remand the matter for a new final hearing.

Based upon the following reasons, we disagree.

      {¶ 6} Sup.R. 11 governs “Recording of proceedings” and provides in

section (A) that “[p]roceedings before any court and discovery proceedings

may be recorded * * *.” (Emphasis added). The applicable version of this

rule was adopted in 1997 and is still currently in effect. Contrary to

Appellant’s argument, the 1997 Staff Notes which accompany the rule state

that “[i]n civil matters, there is no obligation to record the proceedings
Pickaway App. No. 12CA6                                                                                  6


before the court. However, the court must provide a means of recording the

proceedings in a civil matter upon the request of a party.” The Staff Notes

further state that “R.C. 2301.20 requires the court of common pleas to

provide a reporter on request of a party or their attorney.”

        {¶ 7} The Tenth District Court of Appeals recently addressed an

argument similar to the one raised by Appellant in Franklin v. Franklin, 10th

Dist. No. 11AP-713, 2012-Ohio-1814. In response, the Franklin court

determined that Sup.R. 11 “clearly does not require every proceeding to be

recorded.” Franklin at ¶ 13; citing Levengood v. Levengood, 5th Dist. No.

1998AP100114, 2000 WL 874720, (June 7, 2000). As in Franklin,

Appellant does not contend that a record was requested by one of the parties.

Further, the version of R.C. 2301.20 that was in effect at the time of the

hearing at issue provided that a trial court shall provide a shorthand reporter

in civil cases upon the request of either party.2 Thus, although the record

reveals that the trial court did, in fact, attempt to record the proceedings,

neither Sup.R. 11 or the applicable version of R.C. 2301.20 required the trial

court to record the proceedings absent a specific request by one of the

parties.



2
 R.C. 2301.20 has since been amended and the current version, which became effective September 10,
2012, provides that “[a]ll civil and criminal actions in the court of common pleas shall be recorded.”
Pickaway App. No. 12CA6                                                         7


      {¶ 8} Although not raised by Appellant, we additionally note Civ.R.

53(D)(7), which is entitled “Recording of proceedings before magistrates,”

states that “[e]xcept as otherwise provided by law, all proceedings before a

magistrate shall be recorded in accordance with procedures established by

the court.” Our research reveals that the local rules of the Pickaway County

Court of Common Pleas, Domestic Relations Division, did not expressly

require the recordation of the proceedings at issue, but instead simply state

under Rule 16.02, with respect to magistrates, “[a]ll referenced proceedings

shall conform to the requirements of Ohio Civil Rule 53. Further, while this

Court’s own rules provide in App.R. 9(A)(2) that “[t]he trial court shall

ensure that all proceedings of record are recorded by a reliable method,”

App.R. 9(B)(4) contemplates situations in which “no recording was made.”

      {¶ 9} For example, App.R. 9(B)(4) provides that “[i]f no recording

was made, or when a recording was made but is no longer available for

transcription, App.R. 9(C) or (D) may be utilized.” App.R. 9(C) is entitled

“Statement of the evidence or proceedings when no recording was made,

when the transcript of proceedings is unavailable, or when a recording was

made but is no longer available for transcription,” and provides as follows:

      “If no recording of the proceedings was made, if a transcript is

      unavailable, or if a recording was made but is no longer
Pickaway App. No. 12CA6                                                        8


      available for transcription, the appellant may prepare a

      statement of the evidence or proceedings from the best

      available means, including the appellant’s recollection. The

      statement shall be served on the appellee no later than twenty

      days prior to the time for transmission of the record pursuant to

      App.R. 10 and the appellee may serve on the appellant

      objections or propose amendments to the statement within ten

      days after service of the appellant’s statement; these time

      periods may be extended by the court of appeals for good cause.

      The statement and any objections or proposed amendments

      shall be forthwith submitted to the trial court for settlement and

      approval. The trial court shall act prior to the time for

      transmission of the record pursuant to App.R. 10, and, as settled

      and approved, the statement shall be included by the clerk of

      the trial court in the record on appeal.”

App.R. 9(D) provides yet another alternative, allowing the parties to submit

and “agreed statement as the record on appeal.”

      {¶ 10} Our review of the record before us indicates that the four day

final divorce hearing held before the magistrate was not recorded. Based

upon the affidavit of the court reporter, it appears there was a malfunction
Pickaway App. No. 12CA6                                                          9


with the recording equipment. Additionally, as set forth above, Appellant

does not claim that either party requested that the proceedings be recorded.

      {¶ 11} As already set forth, Sup.R. 11 does not require magistrates to

record proceedings, and the version of R.C. 2301.20 that was in effect at the

time of the proceedings at issue only required recordation upon the request

of one of the parties. Further, although Civ.R. 53 speaks to the recordation

of proceedings before magistrates, it simply requires that “all proceedings

before a magistrate shall be recorded in accordance with procedures

established by the court.” The local rules of the Pickaway County Court of

Common Pleas, Domestic Relations Division, do not specify that these

proceedings must be recorded. Finally, although this Court’s own appellate

rules contemplate that such proceedings be recorded, the rules also provide

alternatives on appeal when no such recording was made. Appellant did not

avail himself of those alternatives until well after the time in which they

would have been appropriate, which was far too late.

      {¶ 12} In light of the foregoing, because there was no clear mandate

requiring the magistrate to make a record of the proceedings, we cannot

conclude that the trial court erred. Further, even assuming arguendo that the

trial court did err in failing to make a record of the proceedings, there were

alternatives to recreate the record available to Appellant under App.R. 9(C)
Pickaway App. No. 12CA6                                                         10


or (D), which he did not timely take advantage of. Thus, even if we had

found error on the part of the trial court, we would not have granted

Appellant the relief requested, which was to have the matter remanded for a

new hearing. Accordingly, Appellant’s first and second assignments of error

are overruled.

                        ASSIGNMENT OF ERROR III

      {¶ 13} In his third assignment of error, Appellant contends that the

trial court erred as a matter of law and in conflict with the evidence in the

grant of assets and liabilities of the parties, and in contravention of the

evidence presented at the final hearing. Appellant claims that lay and expert

trial testimony was not utilized adequately by the magistrate. Appellant also

mentions this Court’s inability to consider this argument absent the trial

testimony.

      {¶ 14} Appellee responds by initially pointing out the fact that

Appellant has failed to properly brief or present any argument regarding this

assignment of error. We agree. Appellant has not separately argued each

assignment of error. In fact, while the purported assignments of error each

number several pages in length, there is only one argument section which

simply appears to summarize the role of the appellate court in general.
Pickaway App. No. 12CA6                                                           11


      {¶ 15} The only information in Appellant’s seventeen page brief that

provides any specific information regarding the trial court’s division of the

parties’ assets and liabilities appears in the statement of the facts section, and

consists of several bullet points alleging inaccuracies, without any

accompanying explanation or argument. App.R. 12(A)(2) authorizes us to

disregard any assignment of error that a party fails to argue separately.

Nevertheless, in the interests of justice, we would ordinarily attempt to

consider this assignment of error on its merits. However, as alluded to

above and as will be more fully discussed below, due to the lack of a

transcript or App.R. 9(C) or (D) statement, our review is severely limited.

      {¶ 16} In his third assignment of error, Appellant appears to complain

that the magistrate, whose decision the trial court adopted, erred in its

division of the parties’ assets and liabilities. Initially, we must address the

standard of review. Civ.R. 53(D)(3)(b)(i) provides that a party “may file

written objections to a magistrate's decision within fourteen days of the

filing of the decision * * *.” Civ.R. 53(D)(3)(b)(iii) further provides that

“[a]n objection to a factual finding, whether or not specifically designated as

a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a

transcript of all evidence submitted to the magistrate relevant to that finding

or an affidavit of that evidence if a transcript is not available.” (Emphasis
Pickaway App. No. 12CA6                                                            12


added). As discussed above, a transcript was not available. If an objecting

party fails to provide the trial court with the transcript of the proceedings

before the magistrate, the appellate court is precluded from considering the

transcript of the magistrate’s hearing. State ex. rel. Duncan v. Chippewa

Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995).

      {¶ 17} Our review of the record further reveals that Appellant also

failed to file an affidavit of the evidence, which alternative was required

under Civ.R. 53(D)(3)(b)(iii) in the absence of a transcript. The trial court

may properly adopt a magistrate's factual findings without further

consideration when the objecting party fails to provide the court with a

transcript of the magistrate's hearing or other relevant material to support

their objections. In re Maxwell, 4th Dist. No. 05CA2863, 2006-Ohio-527, ¶

27, citing Proctor v. Proctor, 48 Ohio App.3d 55, 60, 548 N.E.2d 287

(1988), in turn citing Purpura v. Purpura, 33 Ohio App.3d 237, 515 N.E.2d

27 (1986).

      {¶ 18} In addition, not only did Appellant fail to provide an affidavit

of the evidence in support of his objections to the magistrate’s decision at

the trial court level, he also failed to file a timely statement of the evidence

pursuant to App.R. 9(C) on appeal. App.R. 9 requires that the party

challenging the trial court's decision prove the alleged error through
Pickaway App. No. 12CA6                                                        13


references to the record. Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1980). It is an appellant's duty to provide a record

of the trial court's proceedings that is necessary for the resolution of his

appeal even if, through no fault of the appellant, a verbatim transcript of the

proceedings below is unavailable. Buckley v. Ollila, 11th Dist. No. 98-T-

0177, 2000 WL 263739, *2 (Mar. 3, 2000).

      {¶ 19} Since there was no transcript of the hearing or some other

acceptable alternative as set out in App.R. 9, Appellant cannot demonstrate

the claimed error, and this Court must presume the regularity of the trial

court proceedings as well as the validity of its judgment. See Pryor v.

Pryor, 4th Dist. No. 09CA3096, 2009-Ohio-6670, ¶24; Childers v. Childers,

4th Dist. No. 05CA3007, 2006-Ohio-1391, ¶23; Eastwood v. Eastwood, 5th

Dist. No. 06-CA-0066, 2007-Ohio-3096, ¶ 26, quoting E. Cleveland v.

Dragonette, 32 Ohio St.2d 147, 149, 290 N.E.2d 571, (1972) (“ ‘Without a

transcript or an App.R. 9 substitute, “[a] party, having the duty of instituting

the preparation of the record for the purpose of appeal, may not sit idly by

and then predicate reversal upon the basis of a ‘silent record.’ ”).

Accordingly, we overrule Appellant’s third assignment of error.

      {¶ 20} Having failed to find merit in any of the assignments of error

raised by Appellant, the decision of the trial court is affirmed.
Pickaway App. No. 12CA6                                                          14


                                               JUDGMENT AFFIRMED.

Kline, J., concurring.

      {¶ 21} I respectfully concur in judgment only. In my view, the

relevant issue is Appellant’s failure to comply with Civ.R. 53(D)(3)(b)(iii).

“When a party fails to file a transcript of evidence or a Civ.R.

53(D)(3)(b)(iii) affidavit, our review is limited to determining whether the

trial court abused its discretion when applying the law to the facts.”

(Emphasis added.) Liming v. Damos, 4th Dist. No. 08CA34, 2009-Ohio-

6490, ¶ 17; see also State ex rel. Duncan v. Chippewa Twp. Trustees, 73

Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995). Therefore, as to Appellant’s

third assignment of error, I would find that the trial court did not abuse its

discretion. Furthermore, because Appellant failed to comply with Civ.R.

53(D)(3)(b)(iii), we may not consider any evidence other than the trial

court’s findings of fact. See id.; Ragins v. Dains, 10th Dist. No. 12AP-124,

2012-Ohio-5089, ¶ 9 (“We are * * * precluded from considering anything

that was not before the trial court when it overruled appellant’s objection to

the magistrate’s decision.”). Therefore, I would simply find that Appellant’s

first-and-second assignments of error are irrelevant.

      {¶ 22} Accordingly, I respectfully concur in judgment only.
Pickaway App. No. 12CA6                                                       15


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

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

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

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

      Harsha, J.: Concurs in Judgment and Opinion.
      Kline, J.: Concurs in Judgment Only with Opinion.

                                       For the Court,

                                       BY: ____________________
                                           Matthew W. McFarland
                                           Presiding 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.
