[Cite as Williams v. Williams, 2013-Ohio-5861.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

SUE E. WILLIAMS : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

JOHN V. WILLIAMS : Case No. 2013 AP 07 0027 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2009 TM 10 0489 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: December 18, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

ERICK L. BAUER JAMES J. ONG 

204 West High Avenue 201 North Main Street 

New Philadelphia, OH 44663 Uhrichsville, OH 44683 
Tuscarawas County, Case No. 2013 AP 07 0027 2 

Farmer, P.J. 

{¶1} On May 12, 1984, appellant, John Williams, and appellee, Sue Williams, 

were married. On October 27, 2009, appellee filed a complaint for divorce. By agreed 

judgment entry and decree of divorce filed June 14, 2011, the trial court granted the 

parties a divorce and divided the parties' property. Pertinent to this appeal is the 

disposition of the marital residence property and a vacant piece of property. Appellant 

was to pay on the indebtedness of the properties for eight and one-half years. Appellee 

was to have exclusive use of the marital residence property. At the expiration of the 

term, the properties were to be sold or appellee could purchase appellant's interest 

therein. The trial court retained jurisdiction over the issue of property division to ensure 

equitableness. 

{¶2} On August 28, 2012, appellant filed a motion for termination of obligation 

to pay indebtedness against real estate due to appellee moving her boyfriend into the 

marital residence. On November 14, 2012, appellant filed a motion for sale of vacant 

land due to his having paid off the indebtedness thereon. A hearing on the motions was 

held before a magistrate on February 15, 2013. By decision filed April 29, 2013, the 

magistrate recommended that neither property should be sold. Appellant filed 

objections. By judgment entry filed May 31, 2013, the trial court denied the objections 

and approved and adopted the magistrate's decision. 

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

consideration. Assignments of error are as follows: 
Tuscarawas County, Case No. 2013 AP 07 0027 3 

I 

{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING 

APPELLANT'S MOTION TO TERMINATE OBLIGATION TO PAY INDEBTEDNESS 

AGAINST REAL ESTATE." 

II 

{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING 

APPELLANT'S MOTION FOR SALE OF VACANT GROUND." 

I, II 

{¶6} Appellant claims the trial court erred in denying his motion for termination 

of obligation to pay indebtedness against real estate due to appellee moving her 

boyfriend into the marital residence, and his motion for sale of vacant land due to his 

having paid off the indebtedness thereon. We disagree. 

{¶7} By agreed judgment entry and decree of divorce filed June 14, 2011, 

appellant was to pay on the indebtedness of the marital residence property and the 

vacant property for eight and one-half years. Appellee was to "exclusively use the 

marital residence." Appellant argues appellee violated the exclusivity clause of the 

agreement when she moved her boyfriend into the marital residence. As for the vacant 

property, appellant argues he paid the indebtedness early and therefore the property 

could be sold. 

{¶8} In her decision filed April 29, 2013, the magistrate reviewed the agreed 

judgment entry and stated the following at Finding of Fact No. 7: "***The Magistrate 

finds that an award of exclusive use refers to use between the parties. Therefore, John 

Williams may not reside in the home." The magistrate further found at Finding of Fact 
Tuscarawas County, Case No. 2013 AP 07 0027 4 

No. 9: "The Magistrate further finds that John Williams' expenses for the marital 

residence are the same whether Sue Williams resides there alone or with others. 

However, her choice to move her boyfriend into the home, which her ex-husband is 

paying for, is probably insensitive and tasteless." 

{¶9} As for the vacant property, the magistrate found the following at Finding of 

Fact No. 4: 

Paragraph 7(h) states "For an eight and one-half (8 1⁄2) year period, 

commencing April 07, 2011, John Williams shall pay and hold Sue 

Williams harmless from all real estate taxes assessed against the above 

listed parcels." The Magistrate finds the parties planned to retain both the 

marital residence and the vacant land for eight and a half (8 1⁄2) years. 

{¶10} The magistrate recommended that "[n]either the marital residence nor the 

vacant land should be sold." 

{¶11} In reviewing the magistrate's decision, the trial court noted a transcript of 

the magistrate's hearing was not filed pursuant to Civ.R. 53(D)(3)(b)(iii). The trial court 

determined: "***upon independent analysis and review of the Magistrate's Decision filed 

April 29, 2013, the Findings of Fact and Conclusions of Law support the 

Recommendations of the Magistrate and that the Magistrate's Decision should be 

adopted in its entirety without modification." See, Judgment Entry filed May 31, 2013. 

{¶12} In his May 8, 2013 written objections to the magistrate's decision, 

appellant petitioned the trial court "to waive the requirement of the transmission of the 
Tuscarawas County, Case No. 2013 AP 07 0027 5 

transcript" as the facts were uncontroverted and the magistrate misapplied the facts to 

the law. We note a transcript of the magistrate's February 5, 2013 hearing was filed 

after the fact on August 5, 2013. As explained by our brethren from the Sixth District in 

Helmke v. Helmke, 6th Dist. Ottawa No. OT-04-029, 2005-Ohio-1388, ¶ 16: 

The transcript is part of the record on appeal; however, "[a] 

reviewing court cannot add matter to the record before it, which was not a 

part of the trial court's proceedings, and then decide the appeal on the 

basis of the new matter." State v. Ishmail (1978), 54 Ohio St.2d 402, 377 

N.E.2d 500, paragraph one of the syllabus. As such, when a party 

objecting to a magistrate's decision fails to provide the trial court with the 

transcript of evidence, by which the court could make a finding 

independent of the magistrate's, appellate review of the court's findings is 

limited to whether the trial court abused its discretion in adopting the 

magistrate's decision, and the appellate court is precluded from 

considering the transcript of the hearing submitted with the appellate 

record. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio 

St.3d 728, 730, 654 N.E.2d 1254; High v. High (1993), 89 Ohio App.3d 

424, 427, 624 N.E.2d 801; and Howard v. Howard, 6th Dist. No. L-02-

1371, 2003-Ohio-5683, ¶ 12-15. Therefore, this court could only review 

the trial court's decision for an abuse of discretion, i.e., whether, in 

adopting the magistrate's report, "the court's attitude [was] unreasonable, 

arbitrary or unconscionable." State ex rel. Edwards v. Toledo City School 
Tuscarawas County, Case No. 2013 AP 07 0027 6 

Dist. Bd. Of Edn. (1995), 72 Ohio St.3d 106, 107, 647 N.E.2d 799; and 

Proctor v. Proctor (1988), 48 Ohio App.3d 55, 63, 548 N.E.2d 287. 

{¶13} It is perfectly logical that the exclusivity use "refers to use between the 

parties." Therefore, we do not find the trial court's decision was unreasonable, arbitrary 

or unconscionable on this issue. 

{¶14} The agreed judgment entry at paragraphs 7(a), (b), (d), and (e) lists the 

marital residence property and the vacant property and states: "[t]he real estate is 

currently encumbered by a first mortgage to the First National Bank of Dennison Ohio" 

and "[t]he real estate is currently encumbered by a home equity loan with Chase Bank." 

Paragraph 7(f) provides for appellant to pay on the properties for eight and one-half 

years commencing on April 7, 2011, and hold appellee harmless from the indebtedness. 

Paragraph 7(k) specifically states: "[a]fter the expiration of the above listed eight and 

one-half (8 1⁄2) year period, the above listed real estate and marital residence shall be 

sold." 

{¶15} Pursuant to the agreed judgment entry, the parties planned to retain both 

the marital residence and the vacant land for eight and one-half years. Appellant notes 

the trial court retained jurisdiction over the issue of property division to ensure 

equitableness, and argues equitableness calls for the vacant property to be sold since 

he paid the indebtedness thereon early. Appellant was to pay on the indebtedness 

which included a first mortgage and a home equity loan. Although appellant argues he 

paid the indebtedness early on the vacant land, there is no evidence to support what 
Tuscarawas County, Case No. 2013 AP 07 0027 7 

"indebtedness" he paid, i.e., the first mortgage or the home equity loan, and what 

amount he paid vis-à-vis the values of the respective properties. 

{¶16} Upon review, we do not find the trial court abused its discretion in 

approving and adopting the magistrate's decision. 

{¶17} Assignments of Error I and II are denied. 

{¶18} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio 

is hereby affirmed. 

By Farmer, P.J. 

Delaney, J. and 

Baldwin, J. concur. 

 

 

 

 _______________________________ 

 Hon. Sheila G. Farmer 

 

 _______________________________ 

 Hon. Patricia A. Delaney 

 _______________________________ 

 Hon. Craig R. Baldwin 

SGF/sg 1120
[Cite as Williams v. Williams, 2013-Ohio-5861.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

SUE E. WILLIAMS : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JOHN V. WILLIAMS : 

 : 

 Defendant-Appellant : CASE NO. 2013 AP 07 0027 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed. 

Costs to appellant. 

 _______________________________ 

 Hon. Sheila G. Farmer 

 

 _______________________________ 

 Hon. Patricia A. Delaney 

 _______________________________ 

 Hon. Craig R. Baldwin