[Cite as Ortega v. Ortega, 2017-Ohio-7346.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



RAIMUNDO J. ORTEGA                            :     JUDGES:
                                              :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :     Hon. John W. Wise, J.
                                              :     Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
IVETH P. ORTEGA                               :     Case No. 15-CA-8
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Divison,
                                                    Case No. 2011 DR 00326



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   August 24, 2017




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RAIMUNDO J. ORTEGA                                  DAVID W. POSTON
120 Willow Springs Lane                             155 East Columbus Street
Stockbridge, GA 30281                               Suite 160
                                                    Pickerington, OH 43147
Fairfield County, Case No. 15-CA-8                                                     2

Wise, Earle, J.

        {¶ 1} Defendant-Appellant, Iveth Ortega, appeals the January 27, 2015 decree of

divorce of the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations

Division. Plaintiff-Appellee is Raimundo Ortega.

                         FACTS AND PROCEDURAL HISTORY

        {¶ 2} On June 1, 1987, appellant and appellee were married. On June 24, 2011,

appellee filed a complaint for divorce. The parties had four children, two of which were

still minors at the time of the divorce filing, but are now emancipated.

        {¶ 3} Hearings before a magistrate were held on March 20, and May 1, and 9,

2013. The magistrate issued a decision on May 2, 2014. Appellant filed objections. By

judgment entries filed September 18, and 24, 2014, the trial court denied the objections.

A final decree of divorce was filed on January 27, 2015.

        {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration.1 Assignments of error are as follows:

                                             I

        {¶ 5} "THE TRIAL COURT ERRED WHEN IT CREDITED APPELLEE WITH

RECEIPT OF $3,500.00 ON THE BALANCE SHEET FOR THE 2011 FEDERAL TAX

REFUND, WHEN APPELLANT ACTUALLY RECEIVED $6,853.00 FROM THAT

REFUND."




1This appeal was placed in stay following the filing of a bankruptcy petition, and was
reinstated on February 21, 2017.
Fairfield County, Case No. 15-CA-8                                                            3


                                                 II

       {¶ 6} "THE TRIAL COURT ERRED BY ORDERING APPELLANT TO PAY

CHILD SUPPORT FOR TWO CHILDREN RETROACTIVE TO MARCH 20, 2013, WHEN

ONE OF THE MINOR CHILDREN, DAVID, CONTINUED TO RESIDE SOLELY WITH

APPELLANT."

                                                III

       {¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

IMPUTING APPELLANT WITH AN ANNUAL INCOME OF $16,536.00 WHEN SHE HAD

NOT BEEN EMPLOYED SINCE 1993."

                                                IV

       {¶ 8} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

ORDERED APPELLANT TO PAY ONE HALF OF THE GUARDIAN AD LITEM FEES."

                                           I, II, III, IV

       {¶ 9} In her four assignments of error, appellant claims the trial court erred in

making decisions on issues which were also raised in her objections to the magistrate's

decision. In denying the objections, the trial court noted the following in its judgment entry

filed September 18, 2014:



              The Defendant objects to certain factual findings made by the

       Magistrate in the Magistrate's Decision.             According to Ohio Civil Rule

       53(D)(3)(b)(iii), "An objection to a factual finding, . . . shall be supported by

       a transcript of all the evidence submitted to the magistrate relevant to that

       finding or an affidavit of that evidence if a transcript is not available. . . . The
Fairfield County, Case No. 15-CA-8                                                             4


       objecting party shall file the transcript or affidavit with the court within thirty

       days after filing objections unless the court extends the time in writing for

       preparation of the transcript or other good cause. . . ." The Defendant has

       not filed a transcript.

              Without a transcript, the Court is unable to determine whether the

       Magistrate properly determined the factual issues raised in Defendant's

       objections to the Magistrate's Decision.         Pursuant to Ohio Civil Rule

       53(D)(3)(b)(iii), it was the responsibility of the Defendant to obtain and file

       the transcript. Defendant's objections to the factual findings made by the

       Magistrate are therefore denied.

              Therefore, Defendant's Objection to the Magistrate's Decision is

       found not well taken and is denied. The Magistrate's decision filed May 2,

       2014 is hereby adopted as an Order of the Court.



See also Judgment Entry filed September 24, 2014.



       {¶ 10} Although appellant filed timely objections with the trial court, she did not file

a transcript or an affidavit for the trial court's review in support of her objections. Appellant

did file the transcript in this court with her appeal.        "When a party objecting to a

magistrate's decision has failed to provide the trial court with the evidence and documents

by which the trial court could make a finding independent of the report, the appellate court

is precluded from considering the transcript of the hearing submitted with the appellate
Fairfield County, Case No. 15-CA-8                                                       5

record." Oyler v. Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, ¶ 27, citing

State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 654 N.E.2d 1254.

       {¶ 11} Civ.R. 53(D)(3)(b)(iv) states:



              Waiver of right to assign adoption by court as error on appeal. Except

       for a claim of plain error, a party shall not assign as error on appeal the

       court's adoption of any factual finding or legal conclusion, whether or not

       specifically designated as a finding of fact or conclusion of law under Civ.R.

       53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as

       required by Civ.R. 53(D)(3)(b).



       {¶ 12} As explained by the Supreme Court of Ohio in Goldfuss v. Davidson, 79

Ohio St.3d 116, 679 N.E.2d 1099, syllabus:



              In appeals of civil cases, the plain error doctrine is not favored and

       may be applied only in the extremely rare case involving exceptional

       circumstances where error, to which no objection was made at the trial

       court, seriously affects the basic fairness, integrity, or public reputation of

       the judicial process, thereby challenging the legitimacy of the underlying

       judicial process itself.



       {¶ 13} In Lesh v. Moloney, 10th Dist. Franklin No. 11AP-353, 2011-Ohio-6565, ¶

11, our brethren from the Tenth District stated:
Fairfield County, Case No. 15-CA-8                                                         6




             In the absence of a transcript or an affidavit, the trial court is required

      to accept the magistrate's findings of fact and may only determine the legal

      conclusions drawn from those facts. * * * Similarly, because plaintiff failed

      to file a transcript of the hearing with the trial court, our review is limited to

      whether the trial court correctly applied the law to the facts set forth in the

      magistrate's decision. * * *. (Citations omitted.)



      {¶ 14} Accordingly, we review appellant's assignments of error only to determine

whether the trial court committed plain error regarding the complained of issues.

                             CREDITING OF TAX REFUND

      {¶ 15} Appellant claims the trial court erred in crediting appellee with receiving

$3,500.00 from the 2011 federal tax refund when the refund was actually $6,853.00.

      {¶ 16} Determinations on property division are within a trial court's sound

discretion. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981).

      {¶ 17} Pursuant to R.C. 3105.171(C)(1), "the division of marital property shall be

equal. If an equal division of marital property would be inequitable, the court shall not

divide the marital property equally but instead shall divide it between the spouses in the

manner the court determines equitable."

      {¶ 18} In its decision filed May 2, 2014, the magistrate found the following at

Finding of Fact No. 103:
Fairfield County, Case No. 15-CA-8                                                          7


              The parties filed a joint tax return for the 2011 tax year. There was

       a refund of $6,853.00. The refund was intercepted by the Child Support

       Enforcement Agency to pay arrearages.              Then, Husband received

       $3,500.00 back from the intercept. Wife did not receive any money from

       the $3,500.00 refund.     Husband did not provide an accounting for the

       $3,500.00.



       {¶ 19} At page 17, the magistrate concluded the $3,500.00 tax refund was "a

marital asset and appears on the balance sheet as an asset of Husband." The balance

sheet attached to the decision shows the net marital assets for each party to be equal:

$49,527.57 for appellant and $49,527.58 for appellee. The trial court chose to make an

equal division.

       {¶ 20} We do not find plain error in the trial court adopting the magistrate's decision

on the tax refund.

                            RETROACTIVE CHILD SUPPORT

       {¶ 21} Appellant claims the trial court erred in ordering her to pay child support

retroactive to March 20, 2013, the first day of the hearings. Appellant points out the minor

child resided with her from said date until the decree was entered on January 27, 2015.

       {¶ 22} Determinations on child support are within a trial court's sound discretion.

Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989).

       {¶ 23} In its decision filed May 2, 2014, the magistrate found at page 23 that the

duration of the marriage was from June 1, 1987 to March 20, 2013. At Finding of Fact

No. 74, the magistrate found: "After Wife's vehicle accident and arrest, the children spent
Fairfield County, Case No. 15-CA-8                                                        8


most of the month of April, 2013, living at Husband's home. Husband made sure the

children got to school." During the pendency of the proceedings, appellee paid many bills

appellant failed to pay, even though he was not ordered to do so, including providing "food

for the children when he was requested to do so." Finding of Fact No. 104.

       {¶ 24} We do not find plain error in the trial court adopting the magistrate's order

of retroactive child support to March 20, 2013.

                          IMPUTING INCOME TO APPELLANT

       {¶ 25} Appellant claims the trial court erred in imputing income to her for child

support purposes in the amount of $16,536.00.

       {¶ 26} As held by the Supreme Court of Ohio in Rock v. Cabral, 67 Ohio St.3d 108,

616 N.E.2d 218 (1993), syllabus:



              Whether a parent is 'voluntarily underemployed' within the meaning

       of R.C. 3113.215(A)(5), and the amount of 'potential income' to be imputed

       to a child support obligor, are matters to be determined by the trial court

       based upon the facts and circumstances of each case. The determination

       will not be disturbed on appeal absent an abuse of discretion.



       {¶ 27} In its decision filed May 2, 2014, the magistrate found the following relative

to appellant's ability to earn an income:



              57. Wife has not worked outside of the home for many years. When

       the parties lived in New Jersey, she worked and attended the Fashion
Fairfield County, Case No. 15-CA-8                                                     9


      Institute.   When living in Florida, Wife attended the Art Institute of

      Technology. She obtained her Associates' Degree in 1991.

             58. With her Associates' Degree, she obtained employment with a

      company that made shirts.      Wife did design work, earning $17,000 to

      $18,000 per year. She worked for one year, and then became pregnant.

             59. Wife has not worked outside of the home since 1993. She stayed

      home, taking care of the children. Husband traveled frequently for his job,

      and Wife took care of the children and the household.

             60. Wife is currently unemployed, although two children have

      graduated from high school. David is 18 years of age, but still attending

      high school. The youngest child is now 16 years old and attending high

      school.

             61. When asked why she isn't currently working, Wife testified that

      she has a "special needs child." When asked what she has done since the

      parties' separation to find employment, Wife answered "nothing."            In

      response to her attorney's questions, Wife further testified that she hasn't

      looked for work because she needs to get her license in order, she is under

      stress from the divorce, she needs additional training, and it is not fair for

      her children to come home to an empty house when "I've been there for

      them all these years."

             62. Wife testified that she will require training to re-enter the work

      force, or would enter the work force in an entry-level position, such as the

      fast food industry. Wife offered no testimony or evidence of the training she
Fairfield County, Case No. 15-CA-8                                                      10


       would like to pursue, how long it would take to obtain training, or the costs

       of additional training or education.

                63. Husband testified that although David is autistic, he is high

       functioning and capable. Husband does not believe that David's autism

       would prevent Wife from obtaining employment outside the home.



       {¶ 28} The magistrate concluded the following at pages 19, 20, and 21,

respectively:



                Wife's earning ability has been impaired by her absence from the

       work force, as she stayed home to care for her children and the household.

       It will most likely take Wife two to three years to complete some vocational

       type of training. Wife can enter the work force now, earning entry-level

       wages, while she obtains further vocational training.

                ***

                No evidence was presented to show that it would be inappropriate

       for either of the parties to work outside the home, as the only minor child of

       the parties is now 16 years of age.

                ***

                The Wife has been a stay at home mother since 1993, which has

       reduced Wife's earning ability.        It is necessary for Wife to further her

       education and training in order to be competitive in the work force. Wife

       offered no evidence of the time it will take to obtain training, or the cost.
Fairfield County, Case No. 15-CA-8                                                       11




      {¶ 29} The magistrate found appellant should be able to work and imputed a

minimum wage income to her.

      {¶ 30} We do not find plain error in the trial court adopting the magistrate's

imputation of income to appellant.

                      PAYMENT OF GUARDIAN AD LITEM FEES

      {¶ 31} Appellant claims the trial court erred in ordering her to pay her share (50

percent) of the guardian ad litem fees.

      {¶ 32} As explained by our brethren from the Tenth District in Karales v. Karales,

10th Dist. Franklin No. 05AP-856, 2006-Ohio-2963, ¶ 21:



             Regardless, the trial court has discretion over the amount of GAL

      fees, as well as the allocation to either or both of the parties. Davis v. Davis

      (1988), 55 Ohio App.3d 196, 200; Robbins v. Ginese (1994), 93 Ohio

      App.3d 370. Fees may be allocated based on the parties' litigation success,

      and the parties' economic status. Davis, supra. Moreover, it is proper to

      allocate GAL fees based upon which party caused the work of the GAL.

      Jarvis v. Witter, Cuyahoga App. No. 84128, 2004-Ohio-6628, at ¶ 100, citing

      Marsala v. Marsala (July 6, 1995), Cuyahoga App. No. 67301.



      {¶ 33} In its decision filed May 2, 2014, the magistrate stated at Finding of Fact

No. 21: "On June 3, 2013, the Guardian Ad Litem filed a 'Notice of Guardian Ad Litem

Fees,' informing the Court and all parties that Husband owed $1,471.00 and Wife owed
Fairfield County, Case No. 15-CA-8                                                        12


$3,802.50." At Finding of Fact No. 65, the magistrate noted: "Wife testified that she has

no means to pay the outstanding Guardian Ad Litem fees." At page 21, appellant was

awarded $3,000.00 per month in spousal support for an indefinite period of time.

       {¶ 34} At Finding of Fact No. 77, the magistrate stated the guardian ad litem

testified that appellant "did not show up for the first appointment with him, and she arrived

thirty minutes late for the second appointment."

       {¶ 35} We do not find plain error in the trial court adopting the magistrate's

allocation of the guardian ad litem fees.

       {¶ 36} Upon review, we find this case does not present exceptional circumstances

that rise to the level of plain error.

       {¶ 37} Assignments of Error I, II, III, and IV are denied.
Fairfield County, Case No. 15-CA-8                                            13


      {¶ 38} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Domestic Relations Division is hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Wise, John, J. concur.



EEW/sg 807
