Carpenter v. Lemley , 2020 Ohio 5529 ( 2020 )

[Cite as Carpenter v. Lemley, 2020-Ohio-5529.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHAWNTEE CARPENTER JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 20CA000006
JOSHUA J. LEMLEY
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Knox County Court of
Common Pleas, Case No. 19ST06-0189
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSHUA J. LEMLEY
7171 Billman Road
Gambier, Ohio 43022
Knox County, Case No. 20CA000006 2
Hoffman, P.J.
{¶1} Defendant-appellant Joshua J. Lemley appeals the judgment entered by the
Knox County Common Pleas Court granting Plaintiff-appellee Shawntee Carpenter’s
petition for a civil protection stalking order (“CPO”) against him.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 18, 209, Appellee filed a petition for a CPO. The court granted the
order ex parte pursuant to R.C. 2903.214. The case proceeded to a full hearing on July
26, 2019, before a magistrate. The magistrate found the evidence showed a pattern of
behavior by Appellant which caused Appellee to believe Appellant would cause her
physical harm or mental distress. The magistrate specifically found Appellee’s testimony
to be credible, and Appellant’s testimony to not be credible. The magistrate’s decision
issued the protection order through July 26, 2024.
{¶3} Appellant filed objections to the magistrate’s decision on August 8, 2019.
He also filed a motion to hold Appellee in contempt of court for lying at the hearing, and
he filed a motion to vacate the judgment pursuant to Civ. R. 60(B). The trial court
overruled Appellant’s objections, and denied his motions for contempt and relief from
judgment. The trial court adopted the magistrate’s decision.
{¶4} It is from the January 16, 2020 judgment of the Knox County Common
Pleas Court Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRORED BY NOT NOTIFYING THE
APPELLANT JOSHUA J. LEMLEY OF THE EX PARTE HEARING THAT
TOOK PLACE ON JUNE 18TH, 2019.
Knox County, Case No. 20CA000006 3
II. THE TRIAL COURT ERRORED BY NOT ADDRESSING I THE
APPELLANT JOSHUA J. LEMLEYS [SIC] TWO MINOR CHILDREN KL, LL
AND MY PARENTAL RIGHTS AS A FATHER WHO HAD ESTABLISHED
PATERNITY AT BIRTH FOR BOTH CHILDREN ALONG WITH THE
MOTHER AT BIRTH AND NEITHER I THE APPELLANT NOR THE
APPELLEE SHAWNTEE CARPENTER EVER RESCINDED EITHER
BIRTH AFTER SIXTY DAYS.
III. THE TRIAL COURT ERRORED BY NOT ADDRESSING THE
ISSUE OF “PROPERTY” AT THE EX PARTE HEARING THAT TOOK
PLACE ON JUNE 18TH, 2019.
IV. THE TRIAL COURT ERRORED BY NOT FILING THE MOTION
TO VACATE THE PREMISES/MOTION FOR EXCLUSIVE USE.
V. THE TRIAL COURT ERRORED BY NOT ADDRESSING LOCAL
RULES 11.1 GENERAL APPLICATION AND LOCAL RULE 11.2
COMPLIANCE WHICH STATES, “NO ACTION SHALL PROCEED TO
FINAL HEARING UNTIL THERE HAS BEEN COMPLIANCE WITH THIS
RULE UNLESS THE PARTIES RECEIVE LEAVE OF COURT, OR IN
SITUATIONS WHERE THE NONCOMPLYING PARENT HAS ENTERED
NO APPEARANCE AND DOES NOT CONTEST THE ACTION.”
VI. THE TRIAL COURT ERRORED BY NOT HOLDING A HEARING
FOR TWO MOTIONS THAT I FILED IN A TIMELY FASHION, MOTION
FOR CONTEMPT IN THE PRESENCE OF A MAGISTRATE AND MOTION
RULE 60(B) MOTION FOR RELIEF FROM JUDGEMENT OR ORDER.
Knox County, Case No. 20CA000006 4
I.
{¶5} In his first assignment of error, Appellant argues the court erred in failing to
notify him of the ex parte hearing on the CPO, held June 18, 2019.
{¶6} R.C. 2903.214(D)(1) provides:
(D)(1) If a person who files a petition pursuant to this section requests
an ex parte order, the court shall hold an ex parte hearing as soon as
possible after the petition is filed, but not later than the next day that the
court is in session after the petition is filed. The court, for good cause shown
at the ex parte hearing, may enter any temporary orders, with or without
bond, that the court finds necessary for the safety and protection of the
person to be protected by the order. Immediate and present danger to the
person to be protected by the protection order constitutes good cause for
purposes of this section. Immediate and present danger includes, but is not
limited to, situations in which the respondent has threatened the person to
be protected by the protection order with bodily harm or in which the
respondent previously has been convicted of or pleaded guilty to a violation
of section 2903.211 of the Revised Code or a sexually oriented offense
against the person to be protected by the protection order.
{¶7} Black’s Law Dictionary defines ex parte as follows:
Knox County, Case No. 20CA000006 5
On one side only; by or for one party; done for, in behalf of, or on the
application of, one party only. A judicial proceeding, order, injunction, etc.,
is said to be ex parte when it is taken or granted at the instance and for the
benefit of one party only, and without notice to, or contestation by, any
person adversely interested.
{¶8} Thus, by its nature, an ex parte hearing was held in the absence of
Appellant, and without notice to Appellant. Appellant appeared and presented evidence
at the full hearing, which followed the issuance of the temporary ex parte order.
{¶9} The first assignment of error is overruled.
II, III, IV.
{¶10} In his second, third, and fourth assignments of error, Appellant argues the
court erred in failing to address issues of paternity, visitation, and property between the
parties.
{¶11} Appellant did not raise these issues in his objections to the magistrate’s
order. Pursuant to Civ. R. 53(D)(3)(b)(iv), we find Appellant has waived any error.
Further, these issues were not germane to the instant action, which was a petition for a
civil protection order, and not an action concerning division of property or parenting of the
minor children.
{¶12} The second, third, and fourth assignments of error are overruled.
V.
{¶13} Appellant argues the court erred in failing to follow Local Rules of the
Domestic Relations Court 11.1 and 11.2. These rules expressly apply to parents of minor
Knox County, Case No. 20CA000006 6
children involved in divorce, dissolution, or legal separation actions. Because the instant
action was an action for a civil protection order and not one for divorce, dissolution, or
legal separation, we find Local Rules 11.1 and 11.2 did not apply.
{¶14} The fifth assignment of error is overruled.
VI.
{¶15} In his final assignment of error, Appellant argues the court erred in
overruling his motions for direct contempt and for relief from judgment without a hearing.
{¶16} Appellant filed a motion to hold Appellee in direct contempt of court for
giving untruthful testimony in the hearing before the magistrate. The trial court overruled
the motion.
{¶17} A private party may not file an independent contempt action seeking
sanctions for suborning perjury. Anderson v. Smith, 10th Dist. Franklin No. 11AP-160,
196 Ohio App. 3d 540, 2011-Ohio-5619, 964 N.E.2d 468, ¶13. We find the trial court did
not err in overruling Appellant’s motion on this basis, without holding a hearing.
{¶18} Further, the magistrate specifically found Appellee’s testimony to be
credible, and Appellant’s testimony to not be credible. In overruling Appellant’s motion
for contempt, the trial court noted Appellant believed Appellee lied about three specific
things: establishment of paternity for the minor children, the name of the party on the
lease for the property where Appellee resided, and Appellee’s representation Appellant
violated the ex parte protection order when he returned to the parties’ apartment to
retrieve his personal belongings. The trial court found even if Appellant could
demonstrate Appellee provided false testimony on these issues, the pertinent factual
findings concerning Appellant’s pattern of behavior toward Appellee which caused her to
Knox County, Case No. 20CA000006 7
believe Appellant would physically harm her or cause her mental distress would remain
unchanged, and thus the CPO would still issue. We find no error in the trial court’s
determination.
{¶19} Appellant further argues the trial court erred in overruling his Civ. R. 60(B)
motion for relief from judgment without holding a hearing. Appellant filed his motion
before the trial court had entered final judgment. Appellant filed objections to the
magistrate’s decision, which were pending at the time he filed his Civ. R. 60(B) motion.
When a party files timely objections, Civ. R. 60(B) is not applicable until after the trial court
rules on the timely filed objections and enters final judgment. Carpenter v. Johnson, 2nd
Dist. Montgomery No. 24128, 196 Ohio App. 3d 106, 2011-Ohio-4867, 962 N.E.2d 377,
¶10. We find the trial court did not err in dismissing Appellant’s motion on the basis it was
prematurely filed.
{¶20} The sixth assignment of error is overruled.
{¶21} The judgment of the Knox County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur