O'BRIEN, Appellant, v. O'BRIEN, Appellee, 167 Ohio App. 3d 584

Anthony O. Calabrese Jr., Judge. I {¶ 1} Plaintiff-appellant, Christine O’Brien, appeals the decision of the trial court adopting the magistrate’s decision. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court. {¶ 2} According to the case, this matter was considered over three separate days of trial in domestic-relations court: January 3, 2003, March 3, 2004, and September 14, 2004.

The lower court considered appellee Kerry O’Brien’s motions for judicial hearing (review of administrative child-support order) and to modify child support and appellant’s motions to dismiss and to show cause. {¶ 3} Following the submission of written closing arguments by the parties, the magistrate issued his decision with findings of fact and conclusions of law on April 4, 2005. On April 25, 2005, the trial court issued its judgment entry. The trial court found that timely objections to the magistrate’s decision were not filed and that the parties waived their right to any further hearing.

The trial court adopted the magistrate’s decision in its entirety and issued a judgment entry executing the same. {¶ 4} Appellant appealed from the trial court’s April 25, 2005 judgment entry. Appellee filed a motion to dismiss the within appeal for appellant’s failure to (1) file objections to the magistrate’s decision and (2) file a sufficient transcript of the proceedings. {¶ 5} According to the facts, the parties were divorced on March 17, 1994. Pursuant to their judgment entry of divorce, the parties were awarded shared parenting of their one minor child, Kevin O’Brien, who was born on January 9, 1992.

Appellee was ordered to pay child support to appellant in the sum of $240.24 per month plus a two percent processing fee through Cuyahoga Support Enforcement Agency (“CSEA”). {¶ 6} By an agreed judgment entry filed on February 21, 1995, the possession

schedule for the parties’ minor child was modified such that appellee was to have possession of the child on a rotating two-week

schedule from Thursday to Sunday of each week. The provision for additional time, including holiday and summer vacations, was to remain in force. This provision allowed for substantially equal possession time of the child between the parties. {¶ 7} On January 31, 2000, an administrative hearing officer from CSEA issued a recommendation calling for an increase in appellee’s child support obligation from $240.24 per month to $452.50 per month. Various other motions were filed by the parties, but these motions were collateral and were dismissed by the trial court. Appellant now appeals.

II {¶ 8} Appellant’s first assignment of error states as follows: “The trial court erred by not dismissing appellee’s request for judicial hearing when it was undisputed that appellee failed to serve a copy of that request upon the appellant pursuant to Ohio Civ.R. 75(J).” {¶ 9} Appellant’s second assignment of error states as follows: “The trial court erred by applying a deviation from the child support guideline

schedule that is not recognized or permitted under Ohio law.” {¶ 10} Appellant’s third assignment of error states as follows: “The trial court erred by only applying the income of the parties which existed at the time of filing the motion to modify.” III {¶ 11} Our standard of review when reviewing an appeal from a decision of a trial court adopting a magistrate’s decision under Civ.R. 53(E)(4) is abuse of discretion. George Thomas Contr., Inc. v. Hackmann (Mar. 8, 2001), Franklin App.

No. 00AP-877, 2001 WL 224526. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. {¶ 12} In reviewing a trial court’s disposition of objections to a magistrate’s report, an appellate court will not reverse the trial court’s decision if it is supported by some competent, credible evidence. Seasons Coal Co. v.

Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273. {¶ 13} Civ.R. 53 governs proceedings before a magistrate and the trial court’s duties in accepting or rejecting a magistrate’s rulings. A party has 14 days from the issuance of a magistrate’s decision to file objections with the trial judge; the objections shall be specific and state with particularity the grounds for objection. Civ.R. 53(E)(3)(b).

Any objection to a magistrate’s finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is unavailable. Civ.R. 53(E)(3)(c). KME Consulting, L.L.C. v. Yager, Cuyahoga App. No. 84417, 2004-Ohio-6650, 2004 WL 2847844; see, also, Magar v. Konyves, Cuyahoga App. No. 85832, 2005-Ohio-5723, 2005 WL 2807224. {¶ 14} Absent a transcript, the trial court and this court must presume regularity in the proceedings on any finding of fact made by the magistrate. Knapp v.

Edwards Laboratories (1980), 61 Ohio St.2d 197, 15 O.O.3d 218, 400 N.E.2d 384. “Regardless of whether a transcript has been filed, the trial judge always has the authority to determine if the referee’s findings of fact are sufficient to support the conclusions of law drawn therefrom [and] come to a different legal conclusion if that conclusion is supported by the referee’s findings of fact.” Hearn v. Broadwater (1995), 105 Ohio App.3d 586, 664 N.E.2d 971. {¶ 15} The Supreme Court of Ohio stated the following in State v.

Byrd (1987), 32 Ohio St.3d 79, 87, 512 N.E.2d 611: This claim was not raised in the trial court and we need not consider it here. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364; State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277. The application of the doctrine of waiver is particularly appropriate here as there is no record on which to determine the merits of Byrd’s claim.

By not raising the jurisdiction issue in the trial court, defendant failed to introduce any facts into the record to support his claim. {¶ 16} In the case at bar, appellant failed to file objections to the magistrate’s decision prior to the trial court’s April 25, 2005 judgment entry. In addition, appellant failed to file or obtain a transcript of the trial proceedings. {¶ 17} The magistrate’s decision was issued on April 4, 2005. Appellant was required to file her objection on or before April 18, 2005, 14 days later. It is undisputed that appellant failed to do so.

Therefore, by failing to file objections, appellant has waived any error on appeal from the trial court’s judgment entry. {¶ 18} The Supreme Court of Ohio stated the following in State ex rel. Booher v. Honda of Am. Mfg.: Claimant’s arguments before us derive directly from the conclusions of law contained in the magistrate’s decision. Claimant, however, did not timely object to those conclusions as Civ.R. 53(E)(3) requires. Civ.R. 53(E)(3)(

b) prohibits a party from “assigning as error on appeal the court’s adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. ” (Emphasis added.) {¶ 19} Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed. Nor do appellate courts have to consider an error that the complaining party could have called, but did not call, to the trial court’s attention at a time when the error could have been avoided or corrected by the trial court. State ex rel. Quarto Mining Co. v.

Foreman (1997), 79 Ohio St.3d 78, 679 N.E.2d 706. {¶20} Appellant’s failure to file objections to the magistrate’s decision in accordance with Civ.R. 53 precludes appellant from challenging the trial court’s action in regard to adopting the magistrate’s conclusions and findings on appeal. See Davis v. Gray, Franklin App. No. 02AP-746, 2003-Ohio-1655, 2003 WL 1701363. {¶21} We find the magistrate’s decision issued on April 4, 2005, and the subsequent judgment entry of April 25, 2005, to be proper. The trial court’s actions were appropriate and do not constitute an abuse of discretion.

The evidence in the record demonstrates that appellant failed to object to the magistrate’s decision in a timely manner. Therefore, appellant is now precluded from raising these issues on appeal. Accordingly, appellant’s assignments of error are overruled. Judgment affirmed. Blackmon, J., concurs. Dyke, A.J., dissents. . State ex rel. Booher v. Honda of Am. Mfg. (2000), 88 Ohio St.3d 52, 53-54, 723 N.E.2d 571.