RS v. BA , 2023 Ohio 3364 ( 2023 )

[Cite as RS v. BA, 2023-Ohio-3364.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
R.S., :
Plaintiff-Appellee, : No. 112303
v. :
B.A., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 21, 2023
Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-22-969175
Appearances:
Antonio S. Nicholson, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant, B.A., appeals the trial court’s order overruling
his objections to the magistrate’s order, adopted by the trial court, that granted a
petition for a civil protection order in favor of R.S. Because the trial court did not
abuse its discretion by overruling B.A.’s objections, the judgment is affirmed.
On September 26, 2022, R.S. filed a petition for a civil protection
order against B.A. pursuant to R.C. 2903.214. The trial court issued an ex parte
temporary protection order and referred the case to a magistrate for hearing. On
October 13, 2022, R.S. appeared with counsel and B.A. appeared pro se for a hearing
on the petition. R.S. testified on direct examination. At the conclusion of R.S.’s
direct testimony, but prior to cross-examination, B.A. asked for a continuance of the
hearing in order to obtain counsel. The magistrate granted the motion and
continued the hearing for 25 days until November 7, 2022.
On November 7, 2022, R.S. appeared with counsel for the hearing,
but neither B.A. nor counsel appeared on his behalf. The magistrate concluded the
hearing and issued a decision granting the petition. On November 10, 2022, the trial
court adopted the magistrate’s decision granting the civil protection order.
On November 22, 2022, B.A., through counsel, filed a motion to set
aside the magistrate’s order, a motion to reconsider, and an objection to the
magistrate’s order awarding the civil protection order. These filings are similar in
substance and each state that B.A.’s counsel did not enter an appearance in the case
prior to the continued hearing date, B.A.’s counsel had a conflict on the date of the
continued hearing, and B.A.’s counsel advised B.A. to not appear at the hearing. In
response to the filings, R.S. argued that B.A.’s counsel did not seek a continuance
prior to the hearing date and that B.A. filed an untimely motion to set aside the
magistrate’s order.
On December 9, 2022, the trial court issued three journal entries
resolving B.A.’s November 22, 2022 filings.1 As to the objection filed to the
magistrate’s order, pursuant to Civ.R. 53(D)(3), the trial court found that B.A. “made
the conscious decision to neither appear at the hearing nor move for a continuance
of the hearing.” It determined that the objection was “without a reasonable basis”
and overruled the objection.
B.A. raises one assignment of error that reads:
The trial court abused its discretion when it overruled appellant’s
objection to [the] magistrate’s decision.
B.A. argues the trial court abused its discretion because the decision “constituted a
failure to exercise sound, reasonable and legal decision making, specifically when
the [trial court] opined that the objection to the magistrate’s decision was without a
reasonable basis.” R.S. did not file a brief in this appeal.
Proceedings conducted pursuant to R.C. 2903.214 are subject to
Civ.R. 65.1. M.D. v. M.D., 2018-Ohio-4218, 121 N.E.3d 819, ¶ 51 (8th Dist.). “A ‘trial
court's ruling on objections to a magistrate's decision will not be reversed absent an
abuse of discretion.’” C.A.P. v. M.D.P., 8th Dist. Cuyahoga No. 109882,
1 The trial court denied B.A.’s motion to reconsider finding the motion to be a procedural
nullity and denied B.A.’s motion to set aside the order finding it to be untimely filed. B.A.
did not appeal these judgments.
2021-Ohio-3030, ¶ 22, quoting In re M.I.S., 8th Dist. Cuyahoga No. 98138, 2012-
Ohio-5178, ¶ 11. A court abuses its discretion when it “exercises its judgment in an
unwarranted way regarding a matter over which it has discretionary authority.”
State v. McFarland, 8th Dist. Cuyahoga No. 111390, 2022-Ohio-4638, ¶ 20, citing
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
Further, an abuse of discretion implies that the court's attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
In Durastanti v. Durastanti, 1st Dist. Hamilton No. C-190655, 2020-
Ohio-4687, ¶ 15, the court noted Civ.R. 65.1(F)(3)(d)(iii) provides that a party
objecting to the trial court’s adoption of a magistrate’s order has the burden to
demonstrate
that an error of law or other defect is evident on the face of the order,
or [2] that the credible evidence of record is insufficient to support the
granting or denial of the protection order, or [3] that the magistrate
abused the magistrate's discretion in including or failing to include
specific terms in the protection order.
In his objections to the trial court, B.A. does not argue that an error
of law occurred, that the magistrate’s decision is defective on its face, that the
evidence was insufficient to grant the order, or that the magistrate failed to include
or omitted any specific term. Instead, B.A. argues he had a valid excuse for failing
to appear at the hearing — that his attorney did not appear or seek a continuance.
In essence, B.A. has asked that the order be reversed and a second continuance of
the hearing be granted.
The grant or denial of a continuance is a matter within the discretion
of the trial court. C.M.R. v. B.T.B.S., 8th Dist. Cuyahoga No. 111959,
2023-Ohio-1973, ¶ 11, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078(1981). B.A. had already been granted a continuance of the hearing, but did not
contact the court or appear on the scheduled date. Because B.A. had already been
granted a continuance in the matter and failed to contact the court or appear, we
cannot say the trial court was unreasonable, arbitrary, or unconscionable by
overruling B.A.’s objection.
Judgment affirmed.
It is ordered that appellee recover of appellant 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
common pleas court 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.
______________________________________
MICHELLE J. SHEEHAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR