COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70408 CHRISTINE KOTULA : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KENNETH A. KOTULA : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-194323 (Division of Domestic Relations) JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: George W. MacDonald Kenneth A. Kotula, Esq. 848 Rockefeller Building 15707 Detroit Avenue Cleveland, Ohio 44113 Suite 213 Lakewood, Ohio 44107 Guardian Ad Litem: Steven H. Slive, Esq. Slive & Connick 925 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -2- ROCCO, J.: Appellant Kenneth Kotula appeals the trial court's order adopting the Magistrate's Decision granting fees for the Guardian Ad Litem appointed in this action. There is neither a verbatim transcript nor an approved App.R. 9(C) statement filed in this action to assist this court in our evaluation of appellant's alleged error. As this court's limited review of the record before us indicates that the trial court's decision is supported by the evidence, we affirm. On May 15, 1989, Christine Kotula (hereinafter Christine) filed this domestic relations action against appellant Kenneth Kotula (hereinafter appellant). The parties received a divorce on September 10, 1991. Christine and appellant were awarded shared parenting of their three minor children, Roshell, Jennell and Kenneth, Jr. In 1994 and 1995 Christine moved to modify the shared parenting plan. The parties eventually resolved the motions by agreement on January 4, 1995, and July 27, 1995. On June 22, 1994, attorney Steven H. Slive was appointed as Guardian Ad Litem on behalf of the children. On August 18, 1994, the Guardian Ad Litem filed a motion for fees. This motion was initially set for hearing on February 16, 1995, then continued to May 17, 1995, and finally, to July 27, 1995. The matter was heard by Magistrate John R. Homolak on July 27, 1995. The Magistrate's Decision was filed on September 19, 1995, and granted the motion by the Guardian Ad Litem, awarding Steven H. Slive $2,310.00 for fees and expenses. Slive was granted judgment -3- against both appellant and Christine Kotula in the amount of $1,155.00 each. On October 10, 1995, appellant filed his "Objections to the Report of Magistrate." Appellant contended that "the testimony elicited from the Guardian Ad Litem does not justify the recommendation as set forth in the report." Appellant failed to file any evidence in support of his objections. On February 22, 1996, the court adopted the Magistrate's Decision in its entirety and entered judgment for Steven H. Slive, and against Christine and appellant. On March 25, 1996, appellant filed his notice of appeal of the trial court's order. On April 2, 1996, appellant filed the record in this action pursuant to App.R. 9(A). On April 30, 1996, appellant filed, in this court, a "Statement of Evidence or Proceedings under Appellate Rule 9(C)." Appellant filed this statement with the trial court on July 3, 1996. On July 17, 1996, the Guardian Ad Litem filed "Objections to Defendant's Proposed Statement of Proceedings (Rule 9(C))." This court, by entry dated October 18, 1996, noted that an App.R. 9(C) record is inappropriate in this appeal. Appellant's assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE FEES OF THE GUARDIAN AD LITEM. A. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE FEES OF THE GUARDIAN AD LITEM WHEN NEITHER THE COURT NOR THE GUARDIAN FOLLOWED MANDATED PROCEDURE. -4- B. THE TRIAL COURT ERRED WHEN IT GRANTED THE FEES OF THE GUARDIAN AD LITEM WHEN THE EVIDENCE SHOWED HE DID NOT DO THE WORK REQUIRED BY LAW OF A GUARDIAN AD LITEM. Appellant alleges the trial court erred by granting the motion for fees of the Guardian Ad Litem. The record indicates that no Court Reporter was requested for the hearing. Thus, no verbatim transcript is available. An alternative to a transcript is provided by App.R. 9(C), which provides: If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App.R. 10, who may serve objections or propose amendments to the statement within ten days after service. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App.R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal. In the action sub judice, the trial court never settled and approved appellant's proposed statement. App.R. 9 gives the trial judge the authority to ensure that the statement conforms with the truth. See Joiner v. Illuminating Co. (1978), 55 Ohio App.2d 187. Where the trial court does not sign the proposed statement, the appellate court assumes it was not approved. King v. Plaster (1991), 71 Ohio App.3d 360, 362. Therefore, the proposed statement appellant submitted pursuant to App.R. 9(C) is not a part of the record before this court. -5- In Chaney v. East, dba All-Pro Transmission (1994), 97 Ohio App.3d 431, this court stated: It is axiomatic that the party challenging a judgment has the burden to file an adequate record with the reviewing court to exemplify its claims of error. App. Rules 9 and 10; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19-20, 520 N.E.2d 564, Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199 400 N.E.2d 384; Ostrander v. Parker-Fallis Insulation Co., Inc. (1972), 29 Ohio St.2d 72, 74, 278 N.E.2d 363. Absent certification of an adequate record, a reviewing court must presume regularity of the proceedings and affirm the judgment of the trial court. Id. See, also, State v. Prince (1991), 71 Ohio App.3d 694, 699 (when no transcript of the trial is included in the record on appeal as provided for by App.R. 9(B), nor any substitute statement of evidence as provided for by App.R. 9(C) and (D), nor any statement per App.R. 9(B) to indicate a transcript is not needed, the appellant cannot demonstrate the error of which he complains and the appellate court must affirm the judgment.) Finally, the Ohio Supreme Court has noted: Without a transcript or other acceptable statement of the evidence presented at the hearing held on appellant's motion, our review of the trial court's judgment is by necessity confined to the remaining pertinent portions of the record. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. Moreover, Civ.R. 53(E)(3)(b), which provides for objections to the magistrate's report, reads: Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available. A party shall not assign as error on appeal the court's adoption of any finding of fact unless the party has objected to that finding or conclusion under this rule. -6- Appellant also failed to file any evidence with his objections to the magistrate's report. The Ohio Supreme Court has noted: When a party objecting to a referee's report has failed to provide the trial court with the evidence and documents by which the court could make a finding independent of the report, appellate review of the court's finding is limited to whether the trial court abused its discretion in adopting the referee's report, and the appellate court is precluded from considering the transcript of the hearing submitted with the appellate record. High v. High (1993), 89 Ohio App.3d 424, 427, 624 N.E.2d 801, 802-803; Civ.R. 53(E)(6); Proctor v. Proctor (1988), 48 Ohio App.3d 55, 548 N.E.2d 287; see also Purpura v. Purpura (1986), 33 Ohio App.3d 237, 515 N.E.2d 27. State ex rel. Duncan v. Chippewa Twp. (1995), 73 Ohio St.3d 728, 730. As appellant failed to provide evidence to the trial court when he objected to the Magistrate's decision, he failed to properly object to the report as provided by Civ.R. 53. Thus, this court would be precluded from even considering a transcript or 9(C) statement had either been properly submitted. Our review of the trial court's judgment indicates there was no abuse of discretion. An abuse of discretion implies that the court's attitude is unreasonable, arbitrary or unconscionable. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, quoting Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. The Magistrate, in his findings, determined that the issues in the action with which the Guardian Ad Litem dealt were complex, -7- that the requested hourly rate was in compliance with Local Rule 35, that the Guardian Ad Litem is an experienced attorney who has been trained as a Guardian Ad Litem, and that the conflict between the parents required that the Guardian Ad Litem protect the interests of the children. The Magistrate further found that the Guardian Ad Litem was conservative in his estimate of hours spent on this action, and did not charge for many hours of service. The Magistrate then examined the facts surrounding each party's ability to pay. The Magistrate concluded that the fee requested by the Guardian Ad Litem was reasonable. The Guardian Ad Litem was granted fees of $2,310.00, based on 12.75 hours at a billing rate of $85.00 per hour Court time, and 20.45 hours at a rate of $60.00 per hour for office time. The Magistrate proceeded to apportion the fees equally between the parties. The findings of fact issued by the Magistrate support the conclusions of law. Further, without the benefit of either a transcript or a 9(C) statement for this court's review, this court must presume regularity in the proceedings in the court below. See King v. Plaster, supra at 363. The trial court did not abuse its discretion when it adopted the Magistrate's Decision. The trial court's decision is affirmed. -8- It is ordered that appellee recover of appellant her 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 the Cuyahoga County Common Pleas Court, Domestic Relations Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C. J., AND ANN DYKE, J., CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .