[Cite as Taylor v. Taylor, 2017-Ohio-1424.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



CHRISTINA TAYLOR                                  JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2016 CA 0008
JEFFERY S. TAYLOR, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Domestic Relations Division, Case
                                               No. 2014 DR 0094


JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                        April 13, 2017




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

NO APPEARANCE                                  CLIFFORD C. SPOHN
                                               144 East Center Street
                                               Marion, Ohio 43302
Morrow County, Case No. 16 CA 0008                                                           2

Wise, John J.

          {¶1}   Defendant-Appellant Jeffery S. Taylor, Jr. appeals the decision of the Court

    of Common Pleas, Morrow County, which granted a post-decree motion to modify

    parenting time and child support.1 Plaintiff-Appellee is Christina Taylor, appellant’s

    former spouse. She has not filed a brief in this matter. The relevant facts leading to this

    appeal are as follows.

          {¶2}   Appellant Jeffrey and Appellee Christina were married on May 20, 2006.

    Two children were born of the marriage: J.T. (born in 2009) and K.T. (born in 2013).

          {¶3}   On March 27, 2014, Appellee Christina filed a complaint for divorce in

    Morrow County. A final decree of divorce was issued by the trial court on March 11, 2015.

    The decree incorporated a shared parenting plan, albeit with the majority of the parenting

    time going to Appellee Christina, who was designated residential parent of J.T. and K.T.

    for school purposes. Among other things, appellant was ordered to pay child support of

    $284.05 per month per child (when health insurance is provided) or $238.76 per month

    per child plus cash medical support (when health insurance is not provided). The

    residence on State Route 95 in Edison, Ohio was found to be non-marital property. The

    trial court, in the decree, also recognized that appellant at that time was paying no rent,

    mortgage, or car payments, but that appellee “now has to locate suitable housing for

    herself and the children.” Decree at para. 10.

          {¶4}   On April 30, 2015, appellee filed inter alia a post-decree motion to modify

    appellant’s parenting time, indicating that she had plans to relocate to Blacklick, Ohio.




1  On the cover of his brief, appellant incorrectly lists himself as the plaintiff at the trial
court level.
Morrow County, Case No. 16 CA 0008                                                    3


Appellee filed a response on June 1, 2015, asserting therein that this move would result

in a 53-mile drive each way for parenting time.

      {¶5}   The motion was first heard by a magistrate on August 7, 2015. Mediation

was ordered, and a final hearing to the magistrate was scheduled for October 6, 2015,

and then continued until November 17, 2015. A magistrate’s order was issued on that

date, stating that all issues had been resolved via mediation except for child support.

The magistrate therefore ordered both parties to submit their 2014 and 2015 income

information, “including all W-2s and tax returns for 2014.”

      {¶6}   On February 23, 2016, a follow-up magistrate’s decision was issued. The

magistrate therein modified child support to $595.71 per month per child (when health

insurance is provided) or $460.22 per month per child plus cash medical support (when

health insurance is not provided).

      {¶7}   Appellant filed an objection to the magistrate’s decision on March 3, 2016,

challenging the computation of child support and arguing that his counsel had not been

provided copies of the financial information submitted by appellee to the magistrate.

Appellant also challenged the costs of day care claimed by appellee. As a result, the

trial court remanded the matter to the magistrate for a hearing, which took place on May

5, 2016.

      {¶8}   On May 6, 2016, the magistrate issued her decision following remand. She

therein recommended child support to be set at $509.09 per month per child (when

health insurance is provided) or $380.50 per month per child plus cash medical support

(when health insurance is not provided).
Morrow County, Case No. 16 CA 0008                                                       4


      {¶9}    On May 13, 2016, appellant requested findings of fact and conclusions of

law from the magistrate.

      {¶10} On June 10, 2016, the trial court approved and adopted the magistrate's

decision; however, appellant was not provided with any additional facts or law other than

the content of the magistrate's May 6, 2016 decision, as the court found that said decision

“already contained findings of fact and conclusions of law.” Judgment Entry at 1.

      {¶11} Appellant filed a notice of appeal on June 24, 2016. He herein raises the

following four Assignments of Error:

      {¶12} “I. THE COURT ERRED IN NOT PROVIDING TO THE DEFENDANT THE

FACTS        SUPPORTING      THE       MAGISTRATE'S       CONCLUSION        THAT      THE

DEFENDANT'S EVIDENCE WAS NOT CREDITABLE.

      {¶13} “II.    THE COURT'S CONCLUSIONS AS TO THE DEFENDANT’S

CREDIBILITY IS NOT SUPPORTED BY THE RECORD.

      {¶14} “III. THE COURT ERRED IN DEPARTING FROM ITS OWN COURT RULE

(6) BY REQUIRING THE DEFENDANT TO ASSUME THE FULL BURDEN AND COSTS

OF TRANSPORTING THE CHILDREN 224 MILES A WEEK WITHOUT ANY

JUSTIFICATION OR EXPLANATION.

      {¶15} “IV.   THE COURT ERRED IN CONSIDERING AS EVIDENCE FACTS

SUPPOSEDLY SUBMITTED BY THE PLAINTIFF ON DECEMBER 11TH, 2015,

WHEREIN SAID SUPPOSED FACTS ARE NOT IN THE RECORD AND THERE

EXISTS NO PROOF OF SERVICE OF THEM ON THE DEFENDANT.”

                                               I.
Morrow County, Case No. 16 CA 0008                                                         5


      {¶16} In his First Assignment of Error, appellant contends the trial court erred in

failing to issue proper findings of fact and conclusions of law as requested by appellant.

We disagree.

      {¶17} Civ.R. 53(D)(3)(a)(ii) states in pertinent part as follows: “Subject to the terms

of the relevant reference, 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. ***.”

      {¶18} In its decision of June 10, 2016 adopting the magistrate’s decision, the trial

court stated inter alia as follows:

      {¶19} “The defendant did request findings of fact and conclusions of law on May

13, 2016. However, the Magistrate’s Decision already contained findings of fact and

conclusions of law. The Court adopts the findings of fact and conclusions of law

contained in the Magistrate’s Decisions of February 23, 2016 and May 6, 2016.”

      {¶20} Judgment Entry, June 10, 2016 at 1.

      {¶21} A magistrate has a mandatory duty under Civ.R. 53 to issue findings of fact

and conclusions of law if a party has made a timely request. Thompson v. Cannon, 12th

Dist. Fayette No. CA2015-02-003, 2015-Ohio-2893, ¶ 11, citing Burke v. Brown, 4th Dist.

Adams No. 01CA731, 2002–Ohio–6164, ¶ 21. However, a magistrate's failure to issue

findings of fact and conclusions of law upon timely request does not constitute reversible

error when the magistrate's decision substantially complies with Civ.R. 53(D)(3)(a)(ii).

Larson v. Larson, 3rd Dist. Seneca No. 13–11–25, 2011–Ohio–6013, ¶ 16, citing Truex

v. Truex, 179 Ohio App.3d 188, 2008–Ohio–5690, 901 N.E.2d 259, ¶ 27. Where a
Morrow County, Case No. 16 CA 0008                                                            6


    request for findings of fact and conclusions of law is made, “[a] magistrate's decision

    substantially complies with Civ.R. 53(D)(3)(a)(ii) when the contents of the decision,

    considered together with other parts of the record, form an adequate basis upon which

    to decide the narrow legal issues presented.” Larson, supra.

          {¶22} Appellant’s focus in this assigned error is on the question of appellant’s

    compensation from his father, as it pertains to the modification of child support. In her

    decision of May 6, 2016, the magistrate had considered appellant’s testimony “that

    [appellant] really does not receive free rent because he allows his father to retain rent

    from another property that he owns.” Decision at 2. The magistrate specifically found this

    not to be credible. Id. The magistrate also made reference to appellant’s father’s affidavit

    stating certain rental property provided $7,155.00 in income in 2015. Id.2

          {¶23} Upon review, we find the magistrate provided an adequate basis for her

    decision, and we therefore are not persuaded that the magistrate and/or trial court failed

    to properly comply with Civ.R. 53(D)(3)(a)(ii) in this instance.

          {¶24} Appellant’s First Assignment of Error is therefore overruled.

                                                 II.

          {¶25} In his Second Assignment of Error, appellant contends the trial court’s

    determinations as to his credibility were not supported by the record. We disagree.

          {¶26} In her decision in the case sub judice, the magistrate imputed income to

    appellant in addition to his W-2 income. This was based on her attribution of $7,155.00




2   Our reading of the decision does not lead us to the conclusion that the magistrate
treated the entire affidavit as a “falsehood,” as appellant asserts in his brief under this
assigned error. The affidavit states that the father “collected” the rent from the tenants; it
does not reveal how the rental proceeds were treated post-collection.
Morrow County, Case No. 16 CA 0008                                                       7


in rental income to appellant. The magistrate also concluded appellant was the recipient

of two benefits from his employer, his father. These benefits consisted of "free rent" in

his father's house and the use of his father's company vehicles. Appellant notes that at

the magistrate’s hearing on May 5, 2016, he testified that he gave rental income from his

own property to his father and, in return, was given the occupancy of another house

which was owned by his father. Appellant also provided the aforementioned affidavit

signed by his father which was stipulated as evidence in lieu of his testimony. See Tr. at

26-28. Appellant also testified that he used one of his girlfriend's automobiles for his

personal use. See Tr. at 36, 41-43. Appellant urges that there was no opposing evidence

or impeachment offered by appellee as to appellant’s testimony or the father’s affidavit.

See Exhibit A. Appellant thus challenges the magistrate’s findings as to the aforesaid

evidence.

      {¶27} The weight of the evidence and the credibility of the witnesses are primarily

for the trier of fact. Jacco & Assocs. Inc. v. HVAC, Inc., 5th Dist. Tuscarawas No. 2013

AP 03 0016, 2014-Ohio-128, ¶ 42, citing State v. DeHass (1967), 10 Ohio St.2d 230,

227 N.E.2d 212. A trial court is in a much better position than an appellate court to weigh

the evidence, because it views the witnesses, and observes their demeanor, gestures,

and inflections. See Seasons Coal Company v. Cleveland (1984), 10 Ohio St.3d 77, 461

N.E.2d 1273. The fact finder is free to believe all, part, or none of the testimony of each

witness. See State v. Caldwell (1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096.

Therefore, a judgment supported by competent and credible evidence going to all the

elements of the case generally will not be disturbed by a reviewing court. See Singhaus
Morrow County, Case No. 16 CA 0008                                                        8

v. Zumbar, 5th Dist. Tuscarawas No. 2015AP020007, 2015-Ohio-4755, ¶ 13, citing

Masitto v. Masitto (1986), 22 Ohio St.3d 63, 488 N.E.2d 857.

      {¶28} Upon review, we find the magistrate acted within her discretion in assessing

the credibility of appellant’s claimed arrangements as to his additional income.

Furthermore, we have recognized that “[t]he definitions of income under R.C. 3119.01

are broad and expansive to protect the child's best interests.” Vonderhaar–Ketron v.

Ketron, 5th Dist. Fairfield No. 10 CA 22, 2010–Ohio–6593, ¶ 48, citing Bishop v. Bishop,

4th Dist. Scioto No. 03CA2908, 2004–Ohio–4643, ¶ 16 (additional citation omitted).

      {¶29} Accordingly, appellant’s Second Assignment of Error is overruled.

                                            III.

      {¶30} In his Third Assignment of Error, appellant contends the trial court erred in

requiring him to assume the costs of transporting the children for visitation. We disagree.

      {¶31} When making its determinations in custody or visitation cases, the trial

court, as the trier of fact, must be given wide latitude to consider all issues. Heckel v.

Heckel, 12th Dist. Butler No. CA99-12-214, 2000 WL 1279171. According to paragraph

6 of the Morrow County local rules of practice, “the parties shall divide the transportation

equally.” Appellant concedes that the rules allow for deviation by the trial court, but he

maintains the shifting of full transportation costs to him was capricious.

      {¶32} In the case sub judice, the original divorce decree iterated that appellee

“now has to locate suitable housing for herself and the children.” See Decree at para.

10. In other words, due to the parties’ residence during the latter part of the marriage

being declared non-marital property and appellee having to move in with her parents

during the time of the divorce, appellee was not afforded the continuation of living in the
Morrow County, Case No. 16 CA 0008                                                        9


marital residence. She thereafter planned a move to Blacklick, Ohio, about fifty miles

away from appellee, based on a job transfer to the Columbus area. During the post-

decree litigation, the magistrate, with subsequent approval by the trial court, appears to

have derived her decision on transportation costs for the mid-week visits based on these

circumstances, as well as her finding that appellant has the use of vehicles purchased

and sold in his father’s business.

        {¶33} Upon review, we find no reversible error in the trial court's order regarding

transportation costs under the facts and circumstances presented.

        {¶34} Appellant’s Third Assignment of Error is overruled.

                                             IV.

        {¶35} In his Fourth Assignment of Error, appellant contends the trial court erred in

considering financial information not entered in the record or provided to him or his

counsel. We disagree.

        {¶36} Magistrates have the authority to enter orders (as opposed to “decisions”)

without judicial approval “if necessary to regulate the proceedings and if not dispositive

of a claim or defense of a party.” Civ.R. 53(D)(2)(a)(i). Furthermore, if a party does not

move to set aside a magistrate's order, that party waives a challenge to that order on

appeal. J & B Fleet Indus. Supply, Inc. v. Miller, 7th Dist. Mahoning No. 09MA173, 2011-

Ohio-3165, ¶ 32, citing Nettle v. Nettle, 9th Dist. Summit No. 25001, 2010–Ohio–4638,

¶ 13.

        {¶37} In this instance, the magistrate’s order of November 17, 2015, which was

additionally approved via signatures by both parties, directed appellant and appellee to

submit their 2014 and 2015 financial information, “including all W-2s and tax returns for
Morrow County, Case No. 16 CA 0008                                                     10


2014.” The magistrate then indicated she would consider same and issue a decision on

modified child support. No provision for discovery or formal presentation of the financial

information was made in the order, and, although the present issue was tardily brought

up in appellant’s objection to the ensuing magistrate’s decision of February 23, 2016,

neither side filed a motion to set aside the magistrate’s November 17, 2015 order under

Civ.R. 53(D)(2)(b).

       {¶38} We therefore find waiver applies to appellant’s present argument. The

Fourth Assignment of Error is overruled.

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

of Common Pleas, Domestic Relations Division, Morrow County, Ohio, is hereby

affirmed.


By: Wise, John, J.

Delaney, P. J., and

Wise, Earle, J., concur.


JWW/d 0323
Morrow County, Case No. 16 CA 0008   11
