COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59459 LEA R. JACKSON : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ISOM T. JACKSON : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1991 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations No. D-188088 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: NEAL LAVELLE 860 Leader Building Cleveland, Ohio 44114 For Defendant-Appellant: JEAN MURRELL CAPERS 2020 Carnegie Avenue Cleveland, Ohio 44115 - 2 - KRUPANSKY, C.J.: Plaintiff-appellee Lea R. Jackson filed a complaint for divorce in the Common Pleas Court, Domestic Relations Division, against defendant-appellant Isom T. Jackson on August 5, 1988. Defendant filed an answer and cross-complaint. Both parties requested a divorce and custody of their two minor children. The parties separated in August 1988. Plaintiff filed a motion for a restraining order against defendant to guard against harm and interference with the possession of the two children on August 24, 1988. The trial court conducted a hearing on plaintiff's motion for immediate possession and restraining order on September 13, 1988. The trial court granted plaintiff possession of the two children and visitation rights to defendant pursuant to an agreed judgment entry signed by the parties and their respective counsel. The trial court conducted a hearing September 28, 1988 on defendant's motion to dissolve the temporary restraining order and entered a second agreed judgment entry concerning defendant's visitation rights. The trial court subsequently ordered a family conciliation and investigation report. A referee thereafter recommended defendant pay child support for the two children and the trial court subsequently adopted this recommendation. The parties thereafter filed numerous contempt motions based on plaintiff's alleged failure to permit visitation and defendant's failure to pay court ordered - 3 - child support and return certain personal property to plaintiff and the children. Defendant was found to be in contempt based on his failure to pay $3,120 in child support after a hearing conducted by a referee on March 27, 1989. The trial court subsequently adopted the recommendations of the referee. Defendant subsequently filed a writ of prohibition in the Ohio Supreme Court against Judge Flanagan, the trial judge. Judge Flanagan removed himself to preclude the appearance of impropriety and reassigned the case to Judge Fisher, another trial judge within the domestic relations division. On July 25, 1989 Judge Fisher found defendant to be in arrears on his child support obligations in the amount of $4,846.75, having paid only $483.25 since the effective date of the temporary child support order. The trial court ordered that temporary possession and custody of the two children was to remain with plaintiff until further court order. Defendant was ordered to file a cash bond of $500 after various additional motions for contempt and sanctions based on defendant's continued noncompliance with the support order. Defendant never complied with this order. The trial court heard the case and various outstanding motions over the course of five days from September through December, 1989. The trial court entered a judgment of divorce on February 7, 1990. The order granted custody of the two children to plaintiff, established defendant's visitation rights and - 4 - ordered payment of $430 per month for child support, together with $5,000 of plaintiff's legal fees. The order also granted judgment in favor of plaintiff in the amount of $7,446.75 due under the temporary support order. Defendant timely appeals raising four "issues" and seventeen assignments of error. Plaintiff filed a motion to dismiss the appeal which has been referred to the merit panel for disposition. Plaintiff contends defendant has waived defendant's right to appeal based on his counsel's failure to file objections to the final judgment entry in violation of D.R. Loc. R. 28(B)(1). D.R. Loc. R. 28(B)(1) provides in pertinent part as follows: The Court may order or direct either party or counsel to prepare and present for journalization the judgment entry required by subsection (A) of this Rule. When so ordered or directed by the Court, such party or his counsel shall, within 10 days thereafter, unless the time be extended by the Court, prepare a proper judgment entry and submit the same to the opposing party or his counsel. The opposing party or his counsel shall have 3 days in which to approve or reject the judgment entry. In the event of rejection, the opposing party or his counsel shall file with the Court, at the time of such rejection, a written statement of his objections to the judgment entry. This Court has held that when a party expressly approves a proposed judgment entry by signature and fails to file objections as required by Loc. R. 28(B)(1) that party waives his claimed errors and may not raise them for the first time on - 5 - appeal. Paletta v. Paletta (June 21, 199), Cuyahoga App. No. 57162, unreported. Although defendant's counsel did not file objections to the judgment entry in the case sub judice, the record demonstrates counsel never approved the proposed judgment entry. Counsel returned the proposed judgment entry to plaintiff's counsel unsigned indicating defendant was opposed to the findings therein and would appeal the same. Under these circumstances, we do not find that defendant has waived his claimed errors and overrule plaintiff's motion to dismiss. However, the Court must address one other preliminary matter before considering the merits of this appeal. Defendant's brief in support of the seventeen assignments of error addresses only six of these assignments and ignores the remaining eleven. This Court has held that errors not specifically pointed out in the record and separately argued on appeal will be disregarded based upon App. R. 12(A). Oliver v. Cleveland Trinidad Paving Co. (Sep. 27, 1990), Cuyahoga App. No. 57550, unreported. This holding is based on the following passage from North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App. 3d 342: App. R. 12(A) directs this court to determine the merits of appeals "on the assignments of error set forth in the briefs required by Rule 16." App. R. 12(A) further provides: "*** Errors not specifically pointed out in the record and separately argued by brief may be dis- regarded. All errors assigned and briefed shall - 6 - be passed upon by the court in writing, stating the reasons for the court's decision as to each such error." The "Assignments of Error" should designate specific rulings which the appellant challenges on appeal. They may dispute the final judgment itself or other procedural events in the trial court. The "Statement of Issues" should express one or more legal grounds to contest the proce- dural actions challenged by the assigned errors. They may subdivide questions presented by indi- vidual assigned errors, or they may be substanti- ally equivalent to the assigned errors. In this case, we could summarily affirm, by rejecting both the appeal and the cross-appeal for failure to argue separately any assigned error. The parties' failure to argue their assigned errors prevents us from considering them. In the interest of fairness, we will treat their respec- tive "Statement of Issues" as their assigned errors. Id. at 343. The Supreme Court of Ohio has likewise concluded an appellant's failure to separately argue an assignment of error pursuant to App. R. 12(A) is sufficient grounds to overrule or disregard the particular unbriefed error. Hawley v. Ritley (1988), 35 Ohio St. 3d 157: "*** In our view, the court of appeals acted well within its discretion in overruling or disregarding the sixth assignment of error because given the lack of briefing on this assigned error, the plain language of *** [App. R. 12(A)] permits such a disposition. As this court stated on a prior occasion, '[e]rrors not treated in the brief will be regarded as having been abandoned by the party who gave them birth.' Uncapher v. Baltimore & Ohio Rd. Co. (1933), 127 Ohio St. 351, 356, 188 N.E. 553, 555." Hawley v. Ritley, supra, at 159. - 7 - Accordingly, the Court will address assignments of error one, three, four, five, six and seven and disregard the remaining eleven./1\ Defendant's first assignment of error follows: I. THE COURT ERRED IN FAILING TO FOLLOW ITS OWN RULES AS TO SCHEDULING OF CASES: RULE 2(C); AS TO TRIAL AND HEARING DATE, RULE 2(E)(3); RULE 16(B) AND (C); AS TO ASSIGNING OF MOTIONS FOR HEARING: RULE 17(2) (sic); (D)(2) AND RULE 25(C). Defendant's first assignment of error is without merit. Defendant argues in the first assignment of error/2\ the trial court did not properly schedule various motions for hearing or timely prepare the family conciliation and investigation report or dissolve the ex parte temporary protective order. Defendant contends the trial court did not properly schedule a hearing on his motion for temporary custody of the two children. However, the record demonstrates the trial court entered an agreed judgment entry in connection with plaintiff's prior motion for immediate possession stating the children "shall remain with the plaintiff." Defendant's arguments concerning his motion for temporary custody amount to nothing more than an attempt to avoid the effect of this judgment entry. Defendant's agreement with /1\ The eleven assignments of error not separately briefed or argued are set forth in the Appendix. /2\ Defendant's brief argues the first and third assignments of error together under this heading. However, the Court shall address the first and third assignments of error separately. - 8 - plaintiff on another visitation schedule entered by the trial court two weeks later belies defendant's assertions. Defendant argues a family conciliation report was not provided prior to a motion to show cause hearing conducted on March 27, 1989 relating to his failure to pay child support. Although such reports may be relevant in custody and visitation proceedings, it is not clear how such a report was relevant at the hearing concerning defendant's failure to pay court ordered child support. The trial court order entered after the hearing provided possession of the two children remain with plaintiff. Moreover, defendant's failure to request a continuance or demonstrate an objection in the record to the introduction of the report at the hearing waives any error. Finally, defendant argues the ex parte temporary restraining order issued by the trial court on August 29, 1988 exceeded the duration set forth in Dom. Rel. R. 25(C) which was in effect at the time. This rule provided at that time as follows: *** [A]ny order issued subsequent to a full hearing on the petition shall be effective for one year from its date of issuance unless otherwise specified in the order. In any event provisions in a protective order pertaining to custody, visitation or support issues shall terminate 60 days after the filing of an action for divorce, dissolution or alimony unless a lesser time is specified in the order. (Emphasis added). However, our review of the trial court order in the case sub judice reveals no support for the claim the order extended beyond the 60 day period. The order did not specify a duration longer - 9 - than 60 days, and the trial court entered two agreed judgment entries thereafter. Defendant's efforts to avoid the effect of the stipulated judgment entries is no more availing in this context. Accordingly, defendant's first assignment of error is without merit and overruled. Defendant's third assignment of error follows: III. CIVIL RULE 75(A)(2) AND (M)(2) ARE UNCONSTITU- TIONAL IN THAT THE ORDERS OF THE REFEREE HEREIN WERE RUBBER-STAMPED BY JUDGE FLANAGAN AND WERE NOT REVIEWED BY JUDGE FISHER WHEN THE ERROR COMPLAINED OF WAS BROUGHT TO HIS ATTENTION, WHICH WAS HIGHLY PREJUDICIAL TO THE DEFENDANT AS TO HIS RIGHTS TO A FAIR AND IMPARTIAL TRIAL. Defendant's third assignment of error is without merit. Defendant argues for the first time on appeal the trial court's reference of certain matters to various referees during the course of the proceedings pursuant to Civ. R. 75 and Dom. Rel. R. 16 violates defendant's rights to "due process" and "due course of law" guaranteed by the United States and Ohio Constitutions. Defendant contends these rules grant unlimited power to referees to hear and determine the assigned motions. We decline to consider this alleged error since defendant failed to object to the order of reference of any matters to the court appointed referees before the referees issued the recommendations to which defendant now objects. State v. Awan (1986), 22 Ohio St. 3d 120. The use of court-appointed referees to hear divorce and related domestic relations matters has long - 10 - been held to satisfy applicable constitutional requirements when the issue is properly preserved and raised. Lindsay v. Lindsay (1957), 106 Ohio App. 146. The Ohio Supreme Court has specifically held the use of referees in a habeas corpus proceeding involving the custody of a child satisfies due process. In re Hua (1980), 62 Ohio St. 2d 227. Defendant also objects to the fact one referee conducted a hearing on plaintiff's motion to show cause for failure to pay child support although a different referee made the initial recommendation concerning the support order. We find nothing improper. Defendant's contention the referee hearing the motion to show cause improperly reviewed the prior support recommendation by the first referee is without merit. The trial court adopted the first referee's recommendations concerning the support order despite defendant's objections almost four months before the contempt hearing by the second referee, and the trial court independently reviewed and adopted the findings of the second referee. Finally, defendant argues the trial court improperly "rubber stamped" referee recommendations because the recommendations did not contain sufficient information to enable the trial court to make an independent evaluation. However, defendant fails to identify which recommendation or subsequent order he is contesting. - 11 - There is no presumption that a trial court fails to independently review a matter merely because the trial court adopts the proposed recommendations despite a party's objections. Janmohammadi v. Dicesare (June 21, 1990), Cuyahoga App. No. 57006, unreported. Our review of the record indicates the findings of the referees in each instance were sufficiently detailed and specific to permit meaningful review by the trial court before adopting the findings as its own. Accordingly, defendant's third assignment of error is without merit and overruled. Defendant's fourth assignment of error follows: IV. THE ASSIGNED JUDGE IN THIS CASE, THE HON. TIMOTHY FLANAGAN, WHO HAPPENED TO BE THE PRESIDING AND ADMINISTRATIVE JUDGE OF THE DOMESTIC RELATIONS DIVISION OF THE COURT OF COMMON PLEAS, ABUSED HIS DISCRETION AND ERRED IN APPOINTING THE HONORABLE STANLEY FISHER TO CONTINUE THE TRIAL OF THIS CASE WHEN HE WAS UNABLE TO DO SO INSTEAD OF SENDING THE MATTER TO THE PRESIDING JUDGE OF THE COMMON PLEAS COURT FOR THE SELECTION OF ANOTHER JUDGE TO CONTINUE THE CASE OR TO TAKE OTHER ACTION. 1(A) IN MAKING THE APPOINTMENT OF A SUCCESSOR JUDGE ON THE BASIS OF AVOIDING ANY "IMPRO- PRIETY" TAINTED THE PROCEEDINGS HEREIN SO THAT IT WAS IMPOSSIBLE FOR APPELLANT TO HAVE A FAIR TRIAL UNDER ANY APPOINTMENT THE ASSIGNED JUDGE MIGHT HAVE MADE. 2(B) THIS PROCEDURE WAS UNDULY OPPRESSIVE IN TERMS OF A FAIR TRIAL BECAUSE THE HEARING DATE WAS ONLY TEN (10) DAYS FOLLOWING THE DATE OF THE JOURNAL ENTRY WHEREIN THE APPOINTED JUDGE WITHDREW FROM THE CASE. Defendant's fourth assignment of error is without merit. - 12 - Defendant argues for the first time on appeal Judge Flanagan, the initial trial judge, improperly transferred the case to Judge Fisher, another domestic relations judge, rather than to the presiding judge of the Common Pleas Court, General Division, or the Chief Justice of the Ohio Supreme Court upon withdrawing from the case. Defendant argues the transfer of the case ten days prior to trial delayed the conclusion of the case to his prejudice. As noted above, Judge Flanagan removed himself from the case after defendant filed a writ of prohibition against him in the Ohio Supreme Court. Defendant's failure to object to the trans- fer of the case by Judge Flanagan to Judge Fisher at the first opportunity on the trial level precludes defendant from claiming error at this late date on appeal. Berger v. Berger (1981), 3 Ohio App. 3d 125, paragraph four of the syllabus, cert. den., (1982) 103 S. Ct. 76. Moreover, we find the transfer was consistent with the applicable rules and apropriate under the circumstances. Accordingly, defendant's fourth assignment of error is overruled. Defendant's fifth, sixth and seventh assignments of error are related and follow: V. THE ORDERS CONTAINED IN THE JOURNAL ENTRY OF THIS CAUSE ARE MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE AND ARE CONTRARY TO LAW. VI. THE COURT ERRED IN EXCLUDING RELEVANT EVIDENCE - 13 - WHICH SUBSTANTIALLY PREJUDICED THE RIGHTS OF THE DEFENDANT TO A FAIR TRIAL. VII. THE COURT ERRED IN NOT APPLYING THE "BEST INTEREST OF THE CHILD" STANDARD, THE LAW OF OHIO, IN AWARDING CUSTODY TO THE APPELLEE ON THE BASIS OF GIVING THE WEIGHT TO THE "MATERNAL PREFERENCE" STANDARD. Defendant's fifth, sixth and seventh assignments of error are without merit. Defendant argues various orders throughout the proceedings finding defendant in contempt, granting temporary and final custody and support, and various evidentiary rulings during certain hearings constituted an abuse of discretion and are contrary to the weight of the evidence. However, a presumption of validity attends the trial court's action. Volodkevich v. Volodkevich (1989), 48 Ohio App. 3d 313. Defendant has failed to satisfy his burden of exemplifying any of these errors. The record filed by defendant does not contain a transcript of all of the relevant proceedings or a statement of those proceedings pursuant to App. R. 9(C). We note that defendant's prior appeal from this case in Court of Appeals Case Number 58126 was dismissed on September 11, 1989 for the failure to file a proper record. Absent an adequate record, the Court must presume regularity and affirm the judgment of the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197; Tyrell v. Investment Assoc. (1984), 16 Ohio App. 3d 47. - 14 - Accordingly, Defendant's fifth, sixth and seventh assignments of error are overruled. Judgment affirmed. - 15 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing Domestic Relations to carry this judgment into execu- tion. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J., and PATTON, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 16 - APPENDIX ASSIGNMENTS OF ERROR II. THE PLAIN ERROR PATENT ON THE FACE OF THE RECORD OF PROCEEDINGS WHICH PRECLUDED DEFENDANT FROM HAVING A FAIR TRIAL. VIII. THE COURT ERRED IN AWARDING SUPPORT FOR MINOR CHILDREN ON A MOTION FOR TEMPORARY ALIMONY AND WHEREIN NO AWARD OF CUSTODY HAD BEEN MADE TO THE APPELLEE. IX. THE COURT ERRED IN CONCLUDING THAT "POSSESSION" OF A MINOR OR "STAY WITH" AN INDIVIDUAL ARE SYNONYMOUS IN THE LAW WITH CUSTODY IN FAMILY LAW MATTERS. X. JUDGE FISHER ERRED IN THE TRIAL OF THE CASE IN INTER- RUPTING THE PROCEEDINGS FOR LENGTHY QUESTIONING OF THE WITNESSES AND IN ARGUING POINTS IN THE PROCEEDINGS DURING THE EXAMINATION OF THE WITNESSES, GIVING EVIDENCE THAT HIS PARTIALITY IN THE PROCEEDINGS WAS PERVASIVE, HIGHLY PREJUDICING THE RIGHTS OF APPELLANT TO A FAIR TRIAL. XI. THE COURT ERRED IN EQUATING THE NON-PAYMENT OF AN ORDER OF SUPPORT WITH THE RIGHT OF APPELLANT FOR EQUITABLE VISITATION RIGHTS WITH HIS MINOR CHILDREN, AGAINST THE BEST INTERESTS OF SAID MINORS. XII. THE COURT ERRED IN THE APPOINTMENT OF A GUARDIAN AD LITEM WHEN THERE WAS NO NEED FOR SUCH OFFICER, PARTICULARLY WHEN THE RECORD DISCLOSES THAT THE GUARDIAN AD LITEM HEREIN BECAME A SECOND LAWYER FOR APPELLEE HEREIN, BY HER IMPARTIAL OBJECTIONS TO QUESTIONS ASKED APPELLANT BY HIS COUNSEL AND NONE, THROUGHOUT THE ENTIRE PROCEEDINGS TO QUESTIONS ASKED OF APPELLEE BY HER COUNSEL. 1(A) GUARDIAN AD LITEM FEES IN EXCESS OF $3,000.00 WHEN THE MINOR CHILDREN HEREIN HAD NO ESTATE AND WITH NO SPECIAL REQUESTS TO THE COURT FOR ASSISTANCE WITH THEIR BEST INTERESTS SERIOUSLY QUESTIONS THE NECESSITY FOR SUCH APPOINTMENT. XIII. THE COURT ERRED IN APPOINTING A WHITE, FEMALE ATTORNEY WHERE THE BEST INTERESTS OF THE MINOR CHILD, A SEVEN YEAR OLD LITTLE BLACK GIRL, COULD NOT POSSIBLY BE SERVED, PARTICULARLY WHEN THERE ARE BLACK, COMPETENT - 17 - FEMALE ATTORNEYS WHO COULD HAVE SERVED THE BEST INTERESTS OF THIS CHILD IN AN IMPARTIAL MANNER AS TO THE LITIGANTS HEREIN. XIV. THE COURT ERRED IN ACCEPTING AN AWARD OF $65.00 PER WEEK PER CHILD, IMPOSED UPON THE APPELLANT HEREIN WHEN HIS WORK WAS ONLY TEMPORARY AND AMOUNTED TO $6.00 PER HOUR FOR 20 HOURS A WEEK, AND THE EARNINGS OF THE APPELLEE WERE ALMOST $1500.00 PER MONTH ON A JOB WHERE SHE HAD BEEN WORKING FOR NINE (9) YEARS, THE NORTHEAST OHIO REGIONAL SEWER DISTRICT. XV. THE COURT ABUSED ITS DISCRETION AND ERRED IN ITS ACCEPTANCE OF THE REPORT OF THE SOCIAL WORKER WHICH HAD NOT BEEN MADE AVAILABLE TO THE COUNSEL FOR THE PARTIES HEREIN AS REQUIRED BY LAW, AND WHEN SAID REPORT WAS THE RESULT OF A LITTLE OVER AN HOUR'S CONFERENCE WITH THE PARTIES IN DECEMBER, 1988, AND WAS NOT WRITTEN UP UNTIL MARCH 24, 1989, JUST PRIOR TO THE HEARING IN SAID CAUSE ON MARCH 27, 1989. XVI. THE COURT ERRED IN PERMITTING SO MANY REFEREES TO PARTICIPATE IN THE HEARINGS IN SAID CAUSE, DEFEATING THE RULES OF PROCEDURE TO ASSURE A FAIR AND IMPARTIAL TRIAL WHICH PROVIDE FOR THE ASSIGNMENT OF A SINGLE JUDGE TO EACH CASE, THE MULTIPLICITY OF REFEREES THROUGHOUT THIS CASE MADE IT IMPOSSIBLE FOR APPELLANT TO HAVE A FAIR TRIAL. XVII. THE COURT ERRED IN PREVENTING APPELLANT THE RESPONSI- BILITY OF HIS PARENT RIGHTS BY NOT AWARDING HIM EQUAL VISITATION WITH HIS MINOR CHILDREN AND, IN EFFECT, ALIENATING HIS CHILDREN FROM HIM, CONTRARY TO LAW. .