[Cite as In re K.S., 2013-Ohio-5004.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
IN RE:                                            Hon. John W. Wise, P. J.
                                                  Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.

         K.S., W.O., and J.O.                     Case No. 13 CA 19

                                                  OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 01 JC
                                               00486

JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 12, 2013



APPEARANCES:

For Appellee                                   For Appellant-Obligor

                                               ANDREW J. WARHOLA
                                               110 North 7th Street
                                               Cambridge, Ohio 43725
Guernsey County, Case No. 13 CA 19                                                        2

Wise, P. J.

       {¶1}     Appellant Russell T. Osborne appeals from the decision of the Court of

Common Pleas, Juvenile Division, Guernsey County, which found him in contempt of

court for failure to pay his child support and arrearage obligations. The relevant facts

leading to this appeal are as follows.

       {¶2}     Appellant is the father of W.O., born in 1994, and J.O., born in 1997. On

June 8, 2001, W.O. and J.O., along with their half-sister, K.S., were the subject of a

dependency/neglect action filed by the Guernsey County Children Services Board. The

trial court thereafter ordered any support orders for the children to be redirected to his

temporary custodian(s). The trial court record indicates that W.O. and J.O. were put in

relative custody with their paternal grandmother, Nancy Osborne, although W.O. was

apparently returned to the custody of his mother, Heather Smith, in 2011.

       {¶3}     Appellant has repeatedly failed to pay support, resulting in an arrearage of

more than $6,700.00. Appellant is also under a court order to pay $49.55 per month

toward his arrearages. In February 2012, appellant was ordered to serve 30 days in jail

for contempt.

       {¶4}     Guernsey County CSEA filed another motion to show cause (contempt) on

January 14, 2013. The matter proceeded to a hearing before a magistrate on March 4,

2013. The magistrate, on March 6, 2013, found appellant in contempt and ordered him

to serve 30 days in jail, with the main purge provision of appellant paying his $6,751.41

arrearage amount down to no more than $6,000.00 by May 31, 2013.
Guernsey County, Case No. 13 CA 19                                                       3


        {¶5}   Appellant timely filed an objection to the decision of the magistrate. On

April 15, 2013, the trial court issued a judgment entry adopting the decision of the

magistrate.

        {¶6}   Appellant filed a notice of appeal on May 14, 2013.1 He herein raises the

following two Assignments of Error:

        {¶7}   “I.   THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING

APPELLANT IN CONTEMPT OF COURT WHEN APPELLANT PRESENTED

UNREBUTTED TESTIMONY AND EVIDENCE THAT IT WAS NOT IN HIS POWER TO

OBEY THE CHILD SUPPORT ORDERS OF THE COURT.

        {¶8}   “II. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW

AND ERRED IN IMPOSING PURGE CONDITIONS UPON APPELLANT THAT WERE

UNREASONABLE AND NOT POSSIBLE FOR HIM TO SATISFY WITHIN THE TIME

LIMITS ORDERED.”

                                               I., II.

        {¶9}   In his First and Second Assignments of Error, appellant contends the trial

court erred and/or abused its discretion in finding him in contempt of court and in

imposing certain purge conditions regarding the contempt ruling.

        {¶10} As an initial matter, we are compelled to review the status of the transcript

in this case. We have held on numerous occasions that where an appellant 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. See, e.g., State v.

Leite (April 11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court



1
    CSEA has not filed a response brief in this appeal.
Guernsey County, Case No. 13 CA 19                                                        4


has determined that in such a situation, “* * * the appellate court is precluded from

considering the transcript of the hearing submitted with the appellate record.” See State

ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d

1254. “[T]he reviewing court is only permitted to determine if the application of the law

was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist.

Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18. Furthermore, “[t]here is no abuse of

discretion on the part of the trial court in its decision to overrule objections to factual

findings where the party objecting has failed to file a transcript.” Remner v. Peshek

(Sept. 30, 1999), Mahoning App.No. 97–CA–98, 1999 WL 803441 (additional citation

omitted).

       {¶11} In the case sub judice, the transcript of the magistrate’s hearing appears

to have been prepared in time for the present appeal, but not for the trial court’s review

of appellant’s objection to the decision of the magistrate. Said transcript has on its cover

only a “Court of Appeals” file-stamp date of July 23, 2013, several months after the trial

court’s April 15, 2013 ruling on the objection. Furthermore, the trial court stated in that

ruling: “The respondent requested this court to waive the requirement of a transcript and

requested that this court review the audio tape of the proceedings of March 4, 2013.”

Judgment Entry at 1. Finally, the trial court docket shows no request or praecipe for the

preparation of a transcript prior to the notice of appeal to this Court. We therefore

conclude that appellant's objection to the decision of the magistrate was not

accompanied by a transcript of the proceedings before the magistrate. Furthermore,

the trial court did not specifically grant leave to allow presentation of the evidence via

alternative means as set forth in Juv.R. 40(D)(3)(b)(iii).
Guernsey County, Case No. 13 CA 19                                                           5

       {¶12} Contempt has been defined as the disregard for judicial authority. State v.

Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “A finding of civil contempt does not

require proof of purposeful, willing, or intentional violation of a trial court's prior order.”

Townsend v. Townsend, Lawrence App. No. 08CA9, 2008–Ohio–6701, ¶ 27, citing

Pugh v. Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. In this instance, the

magistrate determined that appellant had failed to pay as ordered, resulting in an

arrearage of $6,751.41 as of February 28, 2013. Appellant essentially urges that based

on the exhibits presented to the magistrate documenting his prior felony convictions,

incarcerations, and sex offender status, he has no ability to pay on his arrearage

obligation and purge provisions. However, upon our limited review under the

circumstances of this case (Eiselstein, supra), we find no error or abuse of discretion in

the trial court's application of the law to the magistrate's findings of fact.

       {¶13} Appellant's First and Second Assignments of Error are therefore

overruled.

       {¶14} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.

By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
                                                ___________________________________
                                                HON. JOHN W. WISE

                                                ___________________________________
                                                HON. PATRICIA A. DELANEY

                                                ___________________________________
                                                HON. CRAIG R. BALDWIN


JWW/d 1009
Guernsey County, Case No. 13 CA 19                                               6


            IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT




IN RE:                                   :         JUDGMENT ENTRY
                                         :
                                         :
         K.S., W.O., and J.O.            :         Case No. 13 CA 19




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

judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is

affirmed.

         Costs assessed to appellant.




                                         ___________________________________
                                         HON. JOHN W. WISE


                                         ___________________________________
                                         HON. PATRICIA A. DELANEY


                                         ___________________________________
                                         HON. CRAIG R. BALDWIN
