[Cite as Thomas v. Osborne, 2013-Ohio-5002.]

COURT OF APPEALS 

GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MICHELLE A. THOMAS 

 Plaintiff-Appellee 

-vsRUSSELL T. OSBORNE 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. Patricia A. Delaney, J. 

Hon. Craig R. Baldwin, J. 

Case No. 13 CA 17 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Juvenile Division, Case No. 93 JG 

00674 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 11, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

 ANDREW J. WARHOLA 

 110 North 7th Street 

 Cambridge, Ohio 43725 
Guernsey County, Case No. 13 CA 17 2

Wise, P. J. 

{¶1} Appellant Russell T. Osborne appeals from the decision of the Court of 

Common Pleas, Juvenile Division, Guernsey County, which found him in contempt of 

court for failure to pay toward child support arrearages. The relevant facts leading to this 

appeal are as follows. 

{¶2} Appellant is the father of K.G., now an adult, born in 1989. Appellee 

Michelle A. Thomas is K.G.’s mother. On December 14, 1993, appellant was ordered to 

pay support for K.G. through the Guernsey County CSEA. Appellant thereafter 

repeatedly failed to pay support, resulting in several contempt filings by CSEA and an 

arrearage of more than $24,000.00. Appellant is still under a court order to pay $103.02 

per month toward his arrearages. In February 2012, appellant was ordered to serve 30 

days in jail for contempt. 

{¶3} Guernsey County CSEA filed another motion to show cause (contempt) on 

January 14, 2013. The matter proceeded to a hearing before a magistrate on March 4, 

2013. The magistrate, on March 6, 2013, found appellant in contempt and ordered him 

to serve 30 days in jail, with the main purge provision of appellant paying his $24,307.69 

arrearage amount down to no more than $23,600.00 by May 31, 2013. 

{¶4} Appellant timely filed an objection to the decision of the magistrate. On 

April 15, 2013, the trial court issued a judgment entry adopting the decision of the 

magistrate. 

{¶5} Appellant filed a notice of appeal on May 14, 2013.1

 He herein raises the 

following two Assignments of Error: 

 

1

 Neither Michelle Thomas nor CSEA has filed a response brief in this appeal. 
Guernsey County, Case No. 13 CA 17 3

{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING 

APPELLANT IN CONTEMPT OF COURT WHEN APPELLANT PRESENTED 

UNREBUTTED TESTIMONY AND EVIDENCE THAT IT WAS NOT IN HIS POWER TO 

OBEY THE CHILD SUPPORT ORDERS OF THE COURT. 

{¶7} “II. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW 

AND ERRED IN IMPOSING PURGE CONDITIONS UPON APPELLANT THAT WERE 

UNREASONABLE AND NOT POSSIBLE FOR HIM TO SATISFY WITHIN THE TIME 

LIMITS ORDERED.” 

I., II. 

{¶8} In his First and Second Assignments of Error, appellant contends the trial 

court erred and/or abused its discretion in finding him in contempt of court and in 

imposing certain purge conditions regarding the contempt ruling. 

{¶9} As an initial matter, we are compelled to review the status of the transcript 

in this case. We have held on numerous occasions that where an appellant fails to 

provide a transcript of the original hearing before the magistrate for the trial court's 

review, the magistrate's findings of fact are considered established. See, e.g., State v. 

Leite (April 11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court 

has determined that in such a situation, “* * * the appellate court is precluded from 

considering the transcript of the hearing submitted with the appellate record.” See State 

ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d 

1254. “[T]he reviewing court is only permitted to determine if the application of the law 

was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist. 

Mahoning No. 11 MA 74, 2012–Ohio–3002, ¶ 18. Furthermore, “[t]here is no abuse of 
Guernsey County, Case No. 13 CA 17 4

discretion on the part of the trial court in its decision to overrule objections to factual 

findings where the party objecting has failed to file a transcript.” Remner v. Peshek

(Sept. 30, 1999), Mahoning App.No. 97–CA–98, 1999 WL 803441 (additional citation 

omitted). 

{¶10} In the case sub judice, the transcript of the magistrate’s hearing appears 

to have been prepared in time for the present appeal, but not for the trial court’s review 

of appellant’s objection to the decision of the magistrate. Said transcript has on its cover 

only a “Court of Appeals” file-stamp date of July 23, 2013, several months after the trial 

court’s April 15, 2013 ruling on the objection. Furthermore, the trial court stated in that 

ruling: “The respondent requested this court to waive the requirement of a transcript 

and requested that this court review the audio tape of the proceedings of March 4, 

2013.” Judgment Entry at 1. Finally, the trial court docket shows no request or praecipe 

for the preparation of a transcript prior to the notice of appeal to this Court. We therefore 

conclude that appellant's objection to the decision of the magistrate was not 

accompanied by a transcript of the proceedings before the magistrate. Furthermore, 

the trial court did not specifically grant leave to allow presentation of the evidence via 

alternative means as set forth in Juv.R. 40(D)(3)(b)(iii). 

{¶11} Contempt has been defined as the disregard for judicial authority. State v. 

Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “A finding of civil contempt does not 

require proof of purposeful, willing, or intentional violation of a trial court's prior order.” 

Townsend v. Townsend, Lawrence App. No. 08CA9, 2008–Ohio–6701, ¶ 27, citing 

Pugh v. Pugh (1984), 15 Ohio St.3d 136, 140, 472 N.E.2d 1085. In this instance, the 

magistrate determined that appellant had failed to pay as ordered in this arrears only 
Guernsey County, Case No. 13 CA 17 5

case, resulting in an arrearage of $24,307.69, as of February 28, 2013. Appellant 

essentially urges that based on the exhibits presented to the magistrate documenting 

his prior felony convictions, incarcerations, and sex offender status, he has no ability to 

pay on his arrearage obligation and purge provisions. However, upon our limited review 

under the circumstances of this case (Eiselstein, supra), we find no error or abuse of 

discretion in the trial court's application of the law to the magistrate's findings of fact. 

{¶12} Appellant's First and Second Assignments of Error are therefore 

overruled. 

{¶13} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed. 

By: Wise, P. J. 

Delaney, J., and 

Baldwin, J., concur. 

 ___________________________________ 

 HON. JOHN W. WISE 

 ___________________________________ 

 HON. PATRICIA A. DELANEY 

 ___________________________________ 

 HON. CRAIG R. BALDWIN 

JWW/d 1007 
Guernsey County, Case No. 13 CA 17 6

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MICHELLE A. THOMAS : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RUSSELL T. OSBORNE : 

 : 

 Defendant-Appellant : Case No. 13 CA 17 

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

judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is 

affirmed. 

 Costs assessed to appellant. 

 ___________________________________ 

 HON. JOHN W. WISE 

 ___________________________________ 

 HON. PATRICIA A. DELANEY 

 ___________________________________ 

 HON. CRAIG R. BALDWIN