[Cite as Argenziano v. Argenziano, 2012-Ohio-1447.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

BRANDY A. ARGENZIANO                                       C.A. No.   10CA0116-M

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
FRANK A. ARGENZIANO                                        COURT OF COMMON PLEAS
                                                           COUNTY OF MEDINA, OHIO
        Appellant                                          CASE No.   08CR0359

                                DECISION AND JOURNAL ENTRY

Dated: April 2, 2012



        CARR, Judge.

        {¶1}    Appellant, Frank Argenziano (“Husband”), appeals the judgment of the Medina

County Court of Common Pleas, Domestic Relations Division, which overruled his objections

and adopted the magistrate’s decision. This Court affirms.

                                                      I.

        {¶2}    Appellee, Brandy Argenziano (“Wife”), filed a complaint for divorce from

Husband. The couple had two minor children born of the marriage. The matter was heard by a

magistrate who issued a decision on September 24, 2010, regarding the termination of the

parties’ marriage with children. On the same day, the domestic relations court issued a final

decree of divorce with children. On October 8, 2010, Husband filed timely objections to the

magistrate’s decision in which he objected to 26 specific findings of fact and another six specific

“Conclusions of Law/Findings of Fact.” Husband requested an oral hearing on his objections

and requested that he be permitted to supplement his objections after preparation of a transcript
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of the hearing before the magistrate. Husband did not file a praecipe with the court reporter for

preparation of the transcript contemporaneously with the filing of his objections.

       {¶3}    On October 20, 2010, the trial court issued a judgment entry overruling

Husband’s objections and adopting the magistrate’s findings of facts because Husband had failed

to file a transcript in support of his objections. The trial court further noted that Husband had not

filed a praecipe to the court reporter requesting preparation of a transcript of the proceedings or

deposited a payment of costs with the court reporter to secure a transcript. Husband appealed,

raising one assignment of error for review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND VIOLATED DEFENDANT-
       APPELLANT’S DUE PROCESS RIGHTS BY (1) HOLDING A NON-ORAL
       HEARING ON HIS TIMELY-FILED WRITTEN OBJECTIONS TO THE
       MAGISTRATE’S DECISION WITHIN DAYS OF ITS FILING, WITHOUT
       PROVIDING NOTICE OF THAT HEARING, AND (2) DISMISSING THOSE
       WRITTEN OBJECTIONS WELL BEFORE EXPIRATION OF THE 30-DAY
       DEADLINE UNDER CIV.R. 53(D)(3) FOR FILING THE HEARING
       TRANSCRIPTS, ON THE GROUNDS THAT DEFENDANT-APPELLANT
       DID NOT FILE A PRAECIPE TO THE COURT REPORTER AND PAY A
       DEPOSIT OF COSTS TO THE COURT REPORTER TO SECURE THE
       REQUIRED TRANSCRIPTS, WHERE THERE IS NO LOCAL RULE OR
       OTHER LEGAL REQUIREMENT THAT SUCH A PRAECIPE BE FILED
       AND COSTS OF THE TRANSCRIPTS BE PAID IN ADVANCE.”

       {¶4}    Husband argues that the trial court erred by adopting the magistrate’s findings of

fact and overruling his objections to the magistrate’s decision after a non-oral hearing based on

his failure to file a praecipe or pay costs to the court reporter to secure the preparation of a

transcript in support of his objections. This Court disagrees.

       {¶5}    Husband acknowledges that, pursuant to Civ.R. 53(D)(3)(b)(iii), he was required

to support his objections, all of which were premised on the magistrate’s factual findings, by a
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transcript of the evidence submitted to the magistrate. He does not dispute that he failed to file,

contemporaneously with his objections, a praecipe with the court reporter requesting preparation

of a transcript of the proceedings. Instead, he further relies on Civ.R. 53(D)(3)(b)(iii) which

provides that the objecting party must file a transcript within thirty days after filing his

objections. Husband argues that the domestic relations court erred by ruling on his objections a

mere twelve days after he filed his objections, prior to the expiration of the thirty-day window in

which he could file a transcript. Significantly, he argues that “no duly adopted and published

Local Rule of Court” exists which requires the contemporaneous filing of a praecipe and

payment of a deposit, the noncompliance with which would authorize the trial court’s denial or

dismissal of his objections. Husband is incorrect.

       {¶6}    Loc. R. 1.07, in effect at the time Husband filed his objections, addresses the

preparation of transcripts of proceedings before a magistrate and states, in relevant part:

       A. If a transcript is required, a praecipe to the Court Reporter requesting a
          transcript of the proceedings must be delivered to and acknowledged by the
          Court Reporter at the time of the filing of the Objection or Motion to Set
          Aside. Failure to timely file the praecipe may result in the denial or dismissal
          of an Objection or Motion to Set Aside.

       B. A deposit of costs to secure the transcript must be paid to the Court Reporter
          within 7 days of the filing of the Objection or Motion to Set Aside. If the
          deposit for the costs of a transcript is not made within 14 days of the filing of
          the Objection or Motion to Set Aside, the Objection or Motion may be denied
          or dismissed.

       {¶7}    By failing to recognize the existence of the local rule which formed the

basis for the trial court’s denial of Husband’s objections, Husband has failed to make any

argument regarding the propriety or application of the rule.          This Court has long

recognized that “[a]n appellant bears the burden of affirmatively demonstrating the error
                                                 4


on appeal, and substantiating his or her arguments in support.” Akron v. Meyer, 9th Dist.

No. 21882, 2004-Ohio-4457, ¶ 14, citing App.R. 16(A)(7).


       {¶8}    Husband further argues that the domestic relations court’s ruling on his objections

after a non-oral hearing violated his right to due process. He argues that the trial court violated

the requirements of notice and the opportunity to be heard at an oral hearing subsumed in Civ.R.

6(D). This Court disagrees.

       {¶9}    Civ.R. 6(D) addresses motions and provides, in relevant part, that “[a] written

motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be

served not later than seven days before the time fixed for the hearing * * *.” Husband did not

have a written motion pending before the domestic relations court. Rather, he had filed a notice

of objections to the magistrate’s decision. Civ.R. 6(D) does not address objections and does not

impute a notice and hearing requirement in regard to objections. Moreover, Husband cites no

legal authority in support of his argument that a trial court may not rule on objections to a

magistrate’s decision in the absence of an oral hearing on the matter.

       {¶10} In further support of his argument, Husband cites Shell v. Shell, 5th Dist. No.

2010 CA 00026, 2010-Ohio-5813, at ¶ 24, in which the appellate court held that the domestic

relations court committed reversible error when it dismissed the wife’s contempt motion as

unripe without allowing a hearing. The Shell court did not rely on Civ.R. 6(D) and Husband

does not explain how the holding in Shell is applicable to the instant matter. Shell cites generally

to Matthews v. Eldridge, 424 U.S. 319 (1976), a case which held that due process does not

require an evidentiary hearing prior to the termination of social security disability benefits.

While recognizing that due process requires that an individual receive some form of hearing

prior to the deprivation of a property interest, id. at 333, the Matthews court did not enunciate a
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requirement for an oral hearing under all circumstances and, significantly, did not address the

notion of due process with respect to a trial court’s ruling on objections to a magistrate’s

decision. Husband received notice and an opportunity to be heard at the hearing before the

magistrate regarding the complaint for divorce. Accordingly, he was properly accorded due

process prior to any potential deprivation of his property interests. He does not cite any authority

for the proposition that he is entitled to any further hearing merely because he filed objections to

the magistrate’s decision. While Civ.R. 53(D)(4)(b) allows a trial court to take additional

evidence or itself hear a matter previously referred to the magistrate, it does not mandate such

hearings. Accordingly, Husband has not demonstrated that the domestic relations court violated

his due process rights when it overruled his objections after a non-oral hearing.

       {¶11} Husband’s assignment of error is overruled.

                                                III.

       {¶12} Husband’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT




BELFANCE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

BRUCE E. HALL, Attorney at Law, for Appellant.

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

KRISTOPHER K. AUPPERLE, Attorney at Law, for Appellee.
