IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Amy E. Brown,
:
Plaintiff-Appellee,
:
v.
:
No. 99AP-736
Jamie L. Brown,
:
(REGULAR CALENDAR)
Defendant-Appellant.
:
D E C I S I O N
Rendered on March 14, 2000
Amy E. Brown, pro se.
Harris, McClellan, Binau & Cox, and Tonda L. Moore, for
appellant.
APPEAL from the Franklin County Court of Common Ple as,
Division of Domestic Relations.
BOWMAN, P.J.
Appellant, Jamie L. Brown, appeals from a judgment
of the Franklin
County Court of Common Pleas, Division of Domestic
Relations, granting a civil
protection order to appellee, Amy E. Brown, that es tablished inter alia, custody and
visitation with their son, Brandon, and child suppo rt. Appellee has not filed a brief.
Appellant sets forth the following assignments of e rror:
No. 99AP-736
8
I. RESPONDENT-APPELLANT'S FOURTEENTH AMEND-
MENT RIGHT TO DUE PROCESS OF LAW WAS VIO-
LATED BY THE ERROUNOUS [ sic] ISSUANCE OF THE
CIVIL PROTECTION ORDER AGAINST RESPONDENT-
APPELLANT.
II. THE TRIAL COURT'S ERROROUNOUS [ sic] DENIAL
OF
APPELLANT'S
PARENTAL
RIGHT
TO
FULL
COMPANIONSHIP AND VISITATION WITH HIS INFANT
CHILD WAS A VIOLATION OF APPELLANT'S CONSTITU-
TIONAL RIGHT TO DUE PROCESS, AS WELL AS A
VIOLATION OF THE LEGISLATURE'S INTENT REGARD-
ING O.R.C. 3113.31.
III. THE TRIAL COURT ERROUNOUSLY [ sic] CALCU-
LATED THE CHILD SUPPORT AWARD GRANTED IN THE
C.P.O. AND ENTERED AN IMPROPER WORKSHEET
INTO THE RECORD.
On May 29, 1999, appellee filed a petition for a c
ivil protection order
against appellant pursuant to R.C. 3113.31. Appell ee alleged that appellant hit, choked
and kicked her, attempted to force her and their so n off the road, and had previously
been convicted of domestic violence. The petition
alleged the most recent assault
against her by appellant occurred on May 8, 1999.
An ex parte hearing was held
June 1, 1999, and appellee was granted custody of B randon with no visitation by
appellant, appellant was ordered to vacate the mari tal residence and to have no contact
with appellee or their son. A hearing, as required
by R.C. 3113.31, was set for June 8,
1999. Appellant appeared and was granted a continu ance to June 15, 1999, in order to
obtain counsel. Appellant failed to appear at the
June 15, 1999 hearing; the record
indicates appellee and her attorney were present.
Following the hearing on June 15, 1999, the trial
court granted appellee a
civil protection order which provided, among other
things, that appellant vacate the
residence, that custody was granted to appellee wit h appellant granted supervised
No. 99AP-736
8
visitation, and appellant was ordered to pay $642.6 7 per month in child support, plus the
processing charge. The order provides it is to rem ain in effect for one year.
Appellant's first and second assignments of error
are related and will be
addressed together. Appellant argues the decision
of the trial court to grant a civil
protection order and to award appellant only superv ised visits with his son was against
the weight of the evidence. Appellant also argues
the court order relating to custody
and visitation was permanent.
Appellant has failed to provide this court with a
transcript of the
proceedings as required by App.R. 9(B), or a statem ent of the evidence or proceedings
as provided for in App.R. 9(C). The duty to provid e a transcript for appellate review falls
upon the appellant. This is so because an appellan t bears the burden of showing error
by reference to matters in the record. When portio ns of the transcript necessary for
resolution of assigned errors are omitted from the record, an appellate court has nothing
to pass upon and has no choice but to presume the v alidity of the lower court's
proceedings and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. In
the absence of all the relevant evidence, a reviewi ng court must indulge the
presumption of regularity of the proceedings and th e validity of the judgment in the trial
court. It is appellant's responsibility to include all the evidence in the appellate record so
that the claimed error is demonstrated to the revie wing court. Bates & Springer, Inc. v.
Stallworth (1978), 56 Ohio App.2d 223, and Columbus v. Hodge (1987), 37 Ohio App.3d
68.
The trial court, in granting the civil protection
order, found the allegations
in the petition to be true based on the evidence su bmitted to it and, in the absence of a
No. 99AP-736
8
transcript, we cannot conclude that the trial court 's findings are against the weight of the
evidence or an abuse of discretion. Appellant's ar gument that he has been permanently
deprived of custody or unrestricted visits with his
son is without merit as the civil
protection order expires by its own terms on June 1 5, 2000. Therefore, appellant's first
and second assignments of error are overruled.
In his third assignment of error, appellant argues
that the award of child
support in the amount of $642.67, plus the processi ng fee, is against the weight of the
evidence and further that the court erred in granti ng support as the child support
worksheet was not signed or notarized.
R.C. 3113.215(B)(1) provides in part:
(B)(1) In an action in which a child support order
is issued ***
under *** 3113.31 of the Revised Code, *** the cour t or [child
support enforcement] agency shall calculate the amo unt of
the obligor's child support obligation in accordanc e with the
basic child support schedule in division (B) of thi s section,
the applicable worksheet in division (E) or (F) of
this section
***.
R.C. 3113.215(E) provides:
(E) When a court or child support enforcement agenc y
calculates the amount of child support that will be required to
be paid pursuant to a child support order or an adm inistrative
child support order in a proceeding in which one pa rent is
the residential parent and legal custodian of all o f the
children who are the subject of the child support o rder or the
court issues a shared parenting order, the court or
child
support enforcement agency shall use a worksheet th at is
identical in content and form to the following work sheet[.]
The statute then provides the format for a child su pport computation worksheet.
In Marker v. Grimm (1992), 65 Ohio St.3d 139, paragraphs one and two
of
the syllabus, the Ohio Supreme Court held:
No. 99AP-736
8
1. A child support computation worksheet, required
to be
used by a trial court in calculating the amount of
an obligor's
child support obligation in accordance with R.C. 31 13.215,
must actually be completed and made a part of the t rial
court's record.
2. The terms of R.C. 3113.215 are mandatory in nat ure and
must be followed literally and technically in all m aterial
respects.
The court further stated, at 142:
As a threshold matter, we note that the record befo re us
does not contain a completed child support computat ion
worksheet. In this regard, a review of R.C. 3113.21 5 leads
us to the conclusion that the statute mandates that a court
"use" a worksheet identical in content and form to
the R.C.
3113.215(E) or (F) model worksheet, and that the am ount of
an obligor's child support obligation must be calcu lated "in
accordance with," and "pursuant to," the basic chil d support
schedule and appropriate worksheet. In our judgment , these
mandates very clearly indicate that a worksheet mus t
actually be completed for the order or modification of supp ort
to be made. The responsibility to ensure that the c alculation
is made using the schedule and worksheet rests with the trial
court. R.C. 3113.215(B)(1) provides that the court,
in
performing its duties under the statute, is not req uired to
accept any calculations in a worksheet prepared by any
party to the action or proceeding. As R.C. 3113.215 requires
the applicable worksheet to be completed, there is
every
reason to require that the trial court include that document in
the record. Only in this fashion can appellate cour ts be
assured that the literal requirements of R.C. 3113.215 have
been followed, and that an order or modification of support is
subject to meaningful appellate review.
Accordingly, we hold that a child support computati on
worksheet required to be used by a trial court in c alculating
the amount of an obligor's child support obligation
in
accordance with R.C. 3113.215 must actually be comp leted
and made a part of the trial court's record. Here,
if the
applicable worksheet was completed, it was not incl uded in
the record and, thus, we are left to speculate as t o how the
court determined that $300 was the appropriate amou nt of
child support.
No. 99AP-736
8
In this case, a completed child support worksheet
is part of the record and
the amount of child support due based on income for
appellant in the amount of
$32,000, and for appellee in the amount of $20,000,
was calculated at $642.67.
Appellant argues, in his brief, that his income is
$21,000, and that there is no evidence
in the record to support the income amounts used by
the trial court. As discussed in the
first and second assignments of error, appellant ha s failed to provide a transcript for this
court to review and the decision of the trial court
must be presumed to be correct.
Further, the record does include a W-2 for appellan t showing his income in 1998 to be
$32,000.
The statutory form for the child support worksheet
does include lines for
notarized signatures of the parties to indicate whe ther they consent or disagree with the
amounts set forth. The worksheet completed by the
court in this case is not signed by
either party.
In support of his argument that failure to have th e worksheet signed and
notarized renders the trial court's decision void, appellant relies on Kelly-Doley v. Doley
(1999), Lake App. No. 96-L-217, unreported. In Kelly-Doley, a divided court found that
the failure to have the worksheet prepared by one o f the parties signed and notarized
required reversal. In reaching its decision, the c ourt relied on McCoy v. McCoy (1995),
105 Ohio App.3d 651.
The court in McCoy stated that, in adopting a worksheet submitted by
the
parties, the worksheet must be signed and notarized by both parties. In McCoy, there
was no worksheet in the record but, nonetheless, th e court found the omission harmless
as there was evidence in the record to support the
amount of child support ordered and
No. 99AP-736
8
meaningful appellate review was possible. The hold ing in Kelly-Doley and McCoy is
limited to those cases wherein the court or magistr ate adopts the parties' worksheet,
rather than preparing its own. There is no indicat ion in this record that the trial court did
anything other than complete its own worksheet as r equired by statute and, therefore,
neither Kelly-Doley nor McCoy would be applicable. Likewise, in
Halley v. Ashley
(1997), Summit App. No. 18232, unreported, the Nint h District reversed an award of
child support granted as part of a civil protection order because there was no worksheet
in the record, not because of a lack of notarized s ignatures to the worksheet.
In Stewart v. Stewart (1998), Montgomery App. No. 16649, unreported,
the Second District held that neither R.C. 3113.215
nor Marker required the parties'
notarized signatures to be affixed to the child sup port guidelines worksheet. The court
stated:
*** Admittedly, the worksheet does contain signatur e lines
for each party and lines for the notarization of ea ch party's
signature. We find nothing in the statute, however, requiring
a party to sign the worksheet. ***
Similarly, nothing in Marker, supra, mandates that both
parties must sign and notarize a worksheet before t he trial
court may adopt it. Contrary to the Fourth District 's holding,
the cited portion of Marker imposes no such requirement.
The Marker court held that the trial court must "use" the
worksheet and that support must be calculated "in
accordance with" the worksheet. The court also note d that
"[t]he responsibility to ensure that the calculatio n is made
using the schedule and worksheet rests with the tri al court."
Furthermore, the Marker court itself noted that a trial court "is
not required to accept any calculations in a worksh eet
prepared by any party to the action or proceeding." ***
In this case, there is a completed worksheet in th e record, albeit not
signed by the parties. While the absence of a nota rized signature on the child support
No. 99AP-736
8
guidelines worksheet might alert the trial court to contested issues as to the calculations
made, it does not render the trial court's decision void. In Marker, the court held that the
requirements of R.C. 3113.215 must be followed in a ll material respects. The import of
Marker is that a requirement that a completed worksheet b e included in the record
insures that evidence of the calculations used by t he trial court are part of the record in
order to provide meaningful appellate review of the amount of support awarded. The
lack of a notarized signature to the worksheet does not preclude an appellate court from
reviewing the trial court's decision as to the amou nt of support ordered. To conclude
that a signature was mandatory could have the resul t of depriving children of needed
support where one party willfully refuses to sign t he worksheet, or where, as in this
instance, appellant failed to sign the worksheet as a result of failing to appear at the
hearing. Therefore, appellant's third assignment o f error is overruled.
For the foregoing reasons, appellant's first, seco nd and third assignments
of error are overruled, and the judgment of the Fra nklin County Court of Common Pleas,
Division of Domestic Relations, is affirmed.
Judgment affirmed.
TYACK and BRYANT, JJ., concur.