IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Barbara Adams,
:
Petitioner-Appellee,
:
v.
:
No. 00AP-552
Richard L. Speakman,
:
(REGULAR CALENDAR)
Respondent-Appellant.
:
D E C I S I O N
Rendered on November 30, 2000
Robert R. Berger, for appellee.
Gerald L. Roderick, for appellant.
APPEAL from the Franklin County Court of Common Ple as,
Division of Domestic Relations, Juvenile Branch.
BROWN, J.
Richard L. Speakman, respondent-appellant, appeal s the April 13, 2000
judgment of the Franklin County Court of Common Ple as, Division of Domestic Relations,
Juvenile Branch, wherein the court adopted the magi strate's decision establishing a
father-child relationship between appellant and Ric hard W. and Nicole L. Speakman and
setting child support.
On October 13, 1981, Mary Jane Estepp gave birth
to Nicole L. Speakman.
On September 24, 1982, Estepp gave birth to Richard
W. Speakman. The birth
No. 00AP-552
2
certificates of both Nicole and Richard W. were sig ned by appellant, who was never
married to Estepp.
On March 8, 1999, the Franklin County Child Suppo rt Enforcement Agency
filed a Uniform Interstate Family Support Act petit ion on behalf of petitioner-appellee
Barbara Adams, the children's maternal grandmother and legal guardian, in the Franklin
County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch,
alleging appellant was the father of Richard W. and Nicole, and requesting child support.
On June 28, 1999, the trial court ordered genetic t esting. Appellant
allegedly appeared for genetic testing on July 27, 1999; however, he did not possess the
required identification so the test could not be pe rformed. Appellant then failed to appear
for the rescheduled genetic test on August 17, 1999 . On September 13, 1999, appellant
failed to appear for a hearing, and the magistrate
issued a capias for his arrest. On
January 11, 2000, appellee filed a motion to establ ish the father-child relationship without
genetic testing, and the case was set for hearing o n March 6, 2000. At the March 6, 2000
hearing, appellant failed to appear, and the magist rate issued a decision establishing
paternity and arrearages, ordering child support in the amount of $150.33 per month, and
making various other determinations. No objections
were filed to the magistrate's
decision, and the trial court adopted the magistrat e's decision on April 13, 2000.
Appellant appeals the trial court's judgment, asser ting the following four
assignments of error:
No. 00AP-552
3
ASSIGNMENT OF ERROR NO. 1:
THE TRIAL COURT ERRED IN NOT DISMISSING THIS
ACTION UPON THE MOTION OF RESPONDENT ON THE
GROUNDS THAT PREVIOUS ACTIONS HAD BEEN
DISMISSED FOR FRAUD.
ASSIGNMENT OF ERROR NO. 2:
THE
TRIAL
COURT
ERRED
IN
ESTABLISHING
PARENTAGE WITHOUT GENETIC TESTING PURSUANT
TO OHIO REVISED CODE SECTION 3111.09(A)(2) WHERE
APPELLANT-RESPONDENT DID IN FACT APPEAR FOR
TESTING AND HE OTHERWISE DID NOT WILLFULLY FAIL
TO SUBMIT HIMSELF TO TESTING.
ASSIGNMENT OF ERROR NO. 3:
THE
TRIAL
COURT
ERRED
IN
ESTABLISHING
PARENTAGE WITHOUT GENETIC TESTING PURSUANT
TO OHIO REVISED CODE SECTION 3111.09(A)(2) WHERE
NEITHER APPELLANT-RESPONDENT NOR HIS COUNSEL
RECEIVED
NOTICE
OF
THE
REQUEST
AND
AN
OPPORTUNITY TO BE HEARD.
ASSIGNMENT OF ERROR NO. 4:
THE TRIAL COURT ERRED IN ACCEPTING INCOME
INFORMATION FROM A PREVIOUS EMPLOYER OF THE
APPELLANT-RESPONDENT
AS
EVIDENCE
OF
APPELLANT'S INCOME, AND IN ORDERING APPELLANT-
RESPONDENT
TO
OBTAIN
EMPLOYMENT,
AS
APPELLANT-RESPONDENT
IS
DISABLED
AND
UNEMPLOYED.
Initially, we must address an issue raised by app ellee. Appellant failed to file
objections to the magistrate's decision with the tr ial court. Civ.R. 53(E)(3)(b) provides, in
pertinent part:
No. 00AP-552
4
A party shall not assign as error on appeal the cou rt's
adoption of any finding of fact or conclusion of la w unless the
party has objected to that finding or conclusion un der this rule.
Accordingly, if a party fails to file objections to
the magistrate's decision in accordance
with Civ.R. 53, such claim or objection is waived f or purposes of appeal. Albrecht v.
Albrecht (Feb. 23, 1999), Franklin App. No. 98AP-543, unrepo rted; Alimo v. Pomante
Contractors, Inc. (Sept. 11, 1997), Franklin App. No. 97APG02-221, u nreported. This rule
is based upon the general precept that an appellate
court will not address errors that
arose at trial and could have been avoided or corre cted but were not brought to the
attention of the lower court. Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121.
In the present case, appellant's failure to file
objections to the magistrate's
decision precludes this court from addressing appel lant's assignments of error on their
merits. Therefore, we find that appellant, by faili ng to file the requisite objections to the
magistrate's decision pursuant to Civ.R. 53(E)(3)(b ), has hereby failed to properly
preserve his appeal on these issues.
We further note that even if we were not preclude d by Civ.R. 53(E)(3)(b)
from addressing appellant's assignments of error, w e would be unable to address
appellant's arguments because he failed to file a t ranscript of the proceedings before the
magistrate. The duty to provide a transcript for ap pellate review falls upon the appellant.
Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. This responsibilit y falls
upon an appellant since the appellant bears the bur den of showing error by reference to
matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162; App.R. 9(B). When
No. 00AP-552
5
portions of the transcript necessary for resolution of assigned errors are omitted from the
record, the reviewing court has nothing to pass upo n and, thus, as to those assigned
errors, the court has no choice but to presume the
validity of the lower court's
proceedings and affirm. Knapp, supra, at 199.
Accordingly, we overrule appellant's first, secon d, third, and fourth
assignments of error and affirm the judgment of the
Franklin County Court of Common
Pleas, Division of Domestic Relations, Juvenile Bra nch.
Judgment affirmed.
LAZARUS and KENNEDY, JJ., concur.
___________________