Waltimire v. Waltimire

Bryant, J. This is an appeal by the plaintiff-wife Eleanor E. Waltimire and a cross-appeal by the defendant-husband Donald J. Waltimire from a judgment of the Court of Common Pleas of Henry County making a property division in accordance with the recommendations of the referee’s report. Eleanor E. Waltimire asserts two assignments of error: “I. Since Mrs. Waltimire was a joint tenant with right of survivorship in the disputed accounts, the lower court abused its discretion when it denied her a share in said accounts in its division of property. “II. The trial court abused its discretion by not awarding alimony sufficient to allow the plaintiff to afford health insurance and meet other important expenses.” Following a stipulation by the parties, the second assignment of error was dismissed with prejudice and will not be addressed by this court. Donald J. Waltimire asserts two assignments of error: “I. The trial court abused its discretion when it awarded the 1985 Oldsmobile 88 automobile to appellant. “II. The trial court abused its discretion in awarding appellee no interest in the marital residence.” Although these assignments of error are based essentially upon legal conclusions, ultimately the conclusions are derived from various factual findings adopted by the trial court from the referee’s report. Proctor v. Proctor (1988), 48 Ohio App. 3d 55, 548 N.E. 2d 287. The primary issue raised in this appeal and cross-appeal “concerns the extent to which a party may assign as error the trial court’s adoption of a referee’s finding of fact where that party has failed to properly challenge that finding” by filing an objection to the referee’s report pursuant to Civ. R. 53(E)(6). Proctor, supra, at 56, 548 N.E. 2d at 289. Civ. R. 53(E)(6) states: “Factual findings. A party may not assign as error the court’s adoption of a referee’s finding of fact unless an objection to that finding is contained in that party’s written objections to the referee’s report. * * *” In this case, neither Eleanor Waltimire nor Donald Waltimire filed any objections to the report and recommendations of the referee. Their failure to do so is fatal to this appeal and cross-appeal. A party on appeal, from a final judgment, may not assign as error an abuse of discretion of the trial court as an alternative to filing in the trial court objections to the referee’s report. “ ‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 5 OBR 481, 482, 450 N.E. 2d 1140, 1142. In Proctor, supra (citing Purpura v. Purpura [1986], 33 Ohio App. 3d 237, 515 N.E. 2d 27), we held that a distinction exists between those instances in which no objection is made to a referee’s finding and those instances where an objection is made but the party fails to support it with a transcript or other evidence: “the trial court’s adoption of factual findings under such [latter] circumstances * * * [is] still *277 subject to appellate review for an abuse of discretion * * Id. at 60, 548 N.E. 2d at 293. The absence of an objection by the parties informing the trial court of possible errors in the referee’s report so that it might correct them prevents us from finding that the trial court’s attitude in rendering its decision was unreasonable, arbitrary or unconscionable. By failing to object to the referee’s report within the fourteen days following the filing of the report, as provided in Civ. R. 53(E)(2), the parties waived any error that may have existed. Proctor, supra. 1 Accordingly, the assignments of error raised on appeal and cross-appeal are not well-taken and are overruled. For the reasons stated above and upon the authorities cited and discussed, the judgment of the common pleas court is affirmed. Judgment affirmed. Evans, P. J., and Shaw, J., concur. Footnotes [1] See, also, Partin v. Roe (Mar. 19, 1986), Montgomery App. No. CA 9557, unreported; Woolsey v. Woolsey (Dec. 3, 1987), Licking App. No. CA-3268, unreported; Sims v. Sims (Apr. 16, 1987), Cuyahoga App. No. 51847, unreported; Foster v. Foster (Apr. 20, 1988), Medina App. No. 1644, unreported; Elkins v. Elkins (Nov. 24, 1987), Franklin App. No. 87AP-533, unreported; Conover v. Conover (Oct. 28, 1988), Geauga App. No. 1435, unreported; Crockett v. Alcorn (June 23, 1986), Butler App. No. CA85-12-164, unreported.