[Cite as Kandel v. Kandel, 2011-Ohio-3031.]

COURT OF APPEALS 

 TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ANNE M. KANDEL 

 Plaintiff-Appellee 

-vsBRUCE E. KANDEL, et al. 

 

 Defendants-Appellants 

: JUDGES: 

: Sheila G. Farmer, P.J. 

: John W. Wise, J. 

: Julie A. Edwards, J. 

: 

: Case No. 10AP100039 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County 

 Court of Common Pleas, Domestic 

Relations Division, Case No. 

2008TC020095 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 14, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

PAUL HERVEY MICHAEL C. JOHNSON 

P.O. Box 1014 P.O. Box 1007 

New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663 

 ROBERT H. CYPERSKI 

 1201 30th Street, N.W., 102B 

 Canton, Ohio 44709 

 
[Cite as Kandel v. Kandel, 2011-Ohio-3031.]

Edwards, J. 

{¶1} Appellant, Bruce E. Kandel, appeals a judgment of the Tuscarawas 

County Common Pleas Court awarding appellee Anne Kandel a divorce on the grounds 

of adultery and incompatibility, dividing marital property and naming appellee the 

residential parent of the children. 

STATEMENT OF FACTS AND CASE

{¶2} The parties were married on April 6, 2001. The marriage was appellee’s 

first and appellant’s third. They met when appellee was 17 years old and began 

working at the trucking company where appellant worked. They have twin daughters 

born prematurely on May 3, 2007, who have experienced medical and developmental 

problems. 

{¶3} Appellee filed the instant complaint for divorce on February 27, 2008. The 

case proceeded to trial before a magistrate in December, 2008, and April, 2009. 

Following the hearing, the magistrate found that appellant did not have an ownership 

interest in Beller-VonKaenel Trucking, but was an employee of the company. The 

magistrate further recommended that appellee be named the residential parent of the 

children. 

{¶4} Both parties filed objections to the magistrate’s report. The trial court 

found that appellant did have an ownership interest in Beller-VonKaenal trucking, but 

that such ownership interest arose during the marriage, rendering the company marital 

property. The court named appellee the residential parent of the children. 

{¶5} Appellant assigns six errors on appeal: 
Tuscarawas County App. Case No. 10AP100039 3 

{¶6} “I. THE TRIAL COURT DECISION THAT OWNERSHIP OF BELLERVONKAENEL TRUCKING, OHIO CARRIER, OHIO BROKERAGE AND STRASBURG 

LEASING WERE DEEMED TO BE MARITAL PROPERTY IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶7} “II. THE TRIAL COURT COMMITTED ERROR IN DETERMINING THAT 

DEFENDANT-APPELLANT BRUCE KANDEL’S BUSINESS REAL ESTATE WAS 

ACQUIRED DURING THE MARRIAGE AND THAT THE VALUE WAS SIX HUNDRED 

THOUSAND DOLLARS ($600,000.00) FOR WHICH THREE HUNDRED THOUSAND 

DOLLARS ($300,000.00) WAS ORDERED TO BE PAID TO ANNE KANDEL. THIS 

ORDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND AN ABUSE 

OF DISCRETION. 

{¶8} “III. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO 

BRUCE KANDEL IN ITS DETERMINATION THAT BRUCE KANDEL FAILED TO MEET 

THE BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE TO 

ESTABLISH THAT THE COMPANIES AND THE REAL ESTATES ARE HIS 

SEPARATE PROPERTY. 

{¶9} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING 

ANNE KANDEL AS THE SOLE RESIDENTIAL PARENT TO BRUCE KANDEL AND 

ANNE KANDEL’S TWIN DAUGHTERS, AS THIS IS NOT IN THE BEST INTERESTS 

OF THE CHILDREN. 

{¶10} “V. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING 

ANNE KANDEL AS THE SOLE RESIDENTIAL PARENT WHILE NOT CONSIDERING 

A SHARED PARENTING PLAN BETWEEN BRUCE KANDEL AND ANNE KANDEL. 
Tuscarawas County App. Case No. 10AP100039 4 

{¶11} “VI. BASED UPON THE DEVISION (SIC) OF ASSETS AND PAYMENTS 

ORDERED TO BE MADE BY APPELLANT, THE ORDER TO PAY ATTORNEY FEES 

WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE.” 

{¶12} All of appellant’s assignments of error argue that the judge’s decision is an 

abuse of discretion because it’s not supported by the evidence or is against the 

manifest weight of the evidence. Appellee notes in her brief that appellant failed to 

provide this court with a transcript of the April 24, 2009, hearing before the magistrate 

and the April 26, 2010, hearing before the trial court on objections to the magistrate’s 

decision. 

{¶13} It appears from the trial court’s judgment that the April 26, 2010, objection 

hearing was not a hearing at which the court heard additional evidence. However, the 

April 24, 2009, hearing was the final day of trial before the magistrate. The transcript 

from April 23, 2009, reflects that the court anticipated a few more hours of trial because 

there would be redirect examination of appellant, who was on the witness stand at the 

end of the day on April 23, 2009, and counsel had indicated that there would be 

rebuttal. Tr. 179. 

{¶14} The trial court’s judgment recites at the outset that the court reviewed the 

record including transcripts of the hearing before the magistrate on 12/20/2008, 

4/14/2009, 4/15/2009, 4/16/2009, 4/17/2009, 4/21/2009, and 4/23/2009. The judge 

noted that he reviewed the recording of the 4/24/2009 hearing before the magistrate. 

The court’s footnote states, “The parties did not request a Transcript of the 4/24/2009 

hearing before the Magistrate; however, Civ. R. 53(D)(3)(b)(iii) permits the Court to use 
Tuscarawas County App. Case No. 10AP100039 5 

alternative technology to review and consider relevant evidence.” Judgment Entry, 

September 2, 2010, page 3. 

{¶15} Appellant, therefore, was on notice that he had failed to request a 

transcript of the April 24, 2009, hearing. While on the docketing statement appellant 

indicates that a full transcript would be provided, appellant did not order a transcript of 

the April 24, 2009, hearing as required by App. R. 9(B). The notice of filing of the record 

sent by the clerk of courts to all counsel of record specifically states, “There were no 

additional transcripts filed in this case.” 

{¶16} This Court, therefore, does not have a complete record of all the evidence 

as presented to the magistrate and reviewed by the trial court judge. The duty to 

provide a transcript for appellate review falls upon the appellant. Knapp v. Edwards 

Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384. When portions of the 

transcript necessary for resolution of assigned errors are omitted from the record, the 

reviewing court has nothing to pass upon 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. Id. 
Tuscarawas County App. Case No. 10AP100039 6 

{¶17} Appellant’s first, second, third, fourth, fifth and sixth assignments of error 

are overruled. 

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

Domestic Relations Division, is affirmed. 

By: Edwards, J. 

Farmer, P.J. and 

Wise, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

JAE/r0304 
[Cite as Kandel v. Kandel, 2011-Ohio-3031.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ANNE M. KANDEL : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

BRUCE E. KANDEL, et al., : 

 : 

 Defendants-Appellants : CASE NO. 10AP100039 

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

judgment of the Tuscarawas County Court of Common Pleas, Domestic Relations 

Division, is affirmed. Costs assessed to appellant. 

 _________________________________ 

 _________________________________ 

 _________________________________ 

 JUDGES