V.O. v. S.C.L. ( 2021 )

[Cite as V.O. v. S.C.L., 2021-Ohio-683.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
V. O. C.A. No. 29773
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
S. C. L. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR-2019-12-3505
DECISION AND JOURNAL ENTRY
Dated: March 10, 2021
CALLAHAN, Judge.
{¶1} Appellant, S.C.L., appeals a domestic violence civil protection order issued
by the Summit County Court of Common Pleas, Domestic Relations Division. This Court
affirms.
I.
{¶2} V.O. sought a domestic violence civil protection order alleging that her
former husband, S.C.L., refused to return their children to her custody, would not allow
her to communicate with them, and was an “unfit parent.” She also alleged that S.C.L. was
mentally abusive, that he “screams at [her] [on] the phone in front of the kids,” and that his
parents were providing most of the care for the children when they were in his custody.
She also claimed that, as a result, she was “scared for [her] life and health and for [her]
children.” Following the ex parte hearing on the petition, a magistrate declined to issue an
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ex parte protection order, concluding that S.C.L. did not “pose an immediate and present
danger” to V.O., and scheduled a full hearing on the petition.
{¶3} Following the full hearing, a different magistrate granted a one-year domestic
violence protection order restraining S.C.L. from contact with V.O. and the parties’
children, with the exception of scheduled parenting time. The trial court adopted the
magistrate’s decision. On June 8, 2020, S.C.L. filed a motion to set aside a magistrate’s
order pursuant to Civ.R. 53(D)(2). On June 26, 2020, he filed a notice of appeal.1
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION IN FINDING BY A PREPONDERANCE OF THE
EVIDENCE THAT APPELLANT ENGAGED IN DOMESTIC
VIOLENCE AS DEFINED BY R.C. 3113.31(A).
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT’S DECISION TO GRANT APPELLEE’S PETITION
FOR A DOMESTIC VIOLENCE CIVIL PROTECTION ORDER WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶4} S.C.L.’s two assignments of error, which he has not separately argued, assert
that the trial court’s decision to grant the domestic violence protection order is against the
manifest weight of the evidence.
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The trial court denied S.C.L.’s motion on December 30, 2020, noting that S.C.L. filed a
motion to set aside a magistrate’s order instead of timely objections to a magistrate’s decision and,
in any event, that an appeal was pending.
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{¶5} The procedure applicable to petitions for protection orders is set forth not in
Civ.R. 53, but in Civ.R. 65.1. See generally T.M. v. R.H., 9th Dist. Summit No. 29556,
2020-Ohio-3013, ¶ 5. As this Court has explained,
Pursuant to Civ.R. 65.1(F)(3), a petition for a civil protection order may be
referred to a magistrate for determination, but “[a] magistrate’s denial or
grant of a protection order after full hearing * * * does not constitute a
magistrate’s order or a magistrate’s decision under Civ.R. 53(D)(2) or (3)
and is not subject to the requirements of those rules.” Civ.R. 65.1(F)(3)(b).
A trial court may adopt a magistrate’s denial of a protection order “upon
review of the order and a determination that there is no error of law or other
defect evident on the face of the order.” Civ.R. 65.1(F)(3)(c)(ii). Thereafter,
a party may file written objections “to a court’s adoption, modification, or
rejection of a magistrate’s denial or granting of a protection order after a full
hearing * * * within fourteen days of the court’s filing of the order.” Civ.R.
65.1(F)(3)(d)(i).
(Alterations in original.) T.M. at ¶ 5. A trial court’s order that adopts, modifies, or rejects
a magistrate’s decision to deny or grant a protection order is a final appealable order.
Civ.R. 65.1(G). Nonetheless, “a party must timely file objections to such an order * * *
prior to filing an appeal[.]” Id. Those objections must be specifically tailored to the
procedure set forth in Civ.R. 65.1, and the objecting party must demonstrate “that an error
of law or other defect is evident on the face of the order, or that the credible evidence of
record is insufficient to support the granting or denial of the protection order, or that the
magistrate abused the magistrate’s discretion in including or failing to include specific
terms in the protection order.” Civ.R. 65.1(F)(3)(d)(iii).
{¶6} This Court held that an earlier version of Civ.R. 65.1 did not require the filing
of objections as a prerequisite to consideration of the merits on appeal. See, e.g., A.S. v.
P.F., 9th Dist. Lorain No. 13CA010379, 2013-Ohio-4857, ¶ 4, quoting R.C. v. J.G., 9th
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Dist. Medina No. 12CA0081-M, 2013-Ohio-4265, ¶ 5. With respect to the current version
of the Rule, however, this Court has concluded that filing objections pursuant to Civ.R.
65.1(F)(3)(d) is mandatory. See R.D. v. D.D., 9th Dist. Medina No. 18CA0051-M, 2019-
Ohio-1390, ¶ 4-5; J.Y. v. J.Y., 9th Dist. Medina No. 17CA0037-M, 2018-Ohio-3522, ¶ 4-
5; A.S. v. D.S., 9th Dist. Medina No. 16CA0080-M, 2017-Ohio-7782, ¶ 5-6. See also N.S.
v. E.J., 9th Dist. Summit No. 29657, 2020-Ohio-4971, ¶ 15-16 (declining to address the
merits when the appellant raised issues on appeal that were not raised in objections); T.H.
v. Villoni, 9th Dist. Medina No. 18CA0090-M, 2020-Ohio-3767, ¶ 11 (concluding that the
appellant’s arguments were raised for the first time on appeal when they were not asserted
“in the manner prescribed by Civ.R. 65.1(F)(3)(d)(iii) and (iv)”).
{¶7} After the trial court issued the domestic violence protection order in this case,
S.C.L. filed a “Motion to Set Aside Magistrate’s Order,” which provided that it was being
filed “pursuant to Civ.R. 53(D)(2).” Approximately two weeks later, S.C.L. filed a notice
of appeal. This case is governed by Civ.R. 65.1, however, not Civ.R. 53. See T.M. at ¶ 5.
Civ.R. 65.1(F)(3)(b) specifically provides that “[a] magistrate’s denial or granting of a
protection order after full hearing under this division does not constitute a magistrate’s
order * * * under Civ.R. 53(D)(2) * * *.” (Emphasis added.) S.C.L. did not file objections
to the trial court’s adoption of the magistrate’s granting of the domestic violence protection
order as required by Civ.R. 65.1. Compare T.H. at ¶ 11.
{¶8} Because S.C.L. did not file objections as required by Civ.R. 65.1, this Court
cannot consider the merits of his arguments on appeal. See A.S. at ¶ 6. See also T.H. at ¶
11. S.C.L.’s assignments of error are, therefore, overruled.
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III.
{¶9} S.C.L.’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:
BRIAN A. SMITH, Attorney at Law, for Appellant.
V. O., pro se, Appellee.