J.S. v. D.E. , 2017 Ohio 7507 ( 2017 )

[Cite as J.S. v. D.E., 2017-Ohio-7507.]
STATE OF OHIO MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
J.S., )
)
PETITIONER-APPELLEE, )
) CASE NO. 17 MA 0032
V. )
) OPINION
D.E., )
)
RESPONDENT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 16 CV 3475
JUDGMENT: Dismissed
APPEARANCES:
For Petitioner-Appellee J.S., pro-se
For Respondent-Appellant D.E., pro-se
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: August 28, 2017
[Cite as J.S. v. D.E., 2017-Ohio-7507.]
ROBB, J.
{¶1} Respondent-Appellant D.E. appeals the decision of the Mahoning
County Common Pleas Court adopting the magistrate’s decision granting a civil
stalking protection order to Petitioner J.S. with D.B. listed as an additional person
protected by the order. Appellant argues the court erred in granting the protection
order, claiming Petitioner was not a family or household member of the additional
person protected by the order. However, Appellant’s untimely and general objection
failed to carry the burden imposed by the rule, and no transcript was ordered to
clarify the relationship between Petitioner and the additional protected person. In any
event, Civ.R. 65.1(G) requires a party to file timely objections to the trial court’s
adoption of the magistrate’s granting of the protection order prior to filing an appeal.
As Appellant failed to file timely objections as required by the rule, this appeal is
dismissed.
STATEMENT OF THE CASE
{¶2} On December 30, 2016, Petitioner filed a petition for a civil stalking
protection order against Appellant. On the required petition form, he named himself
“on behalf of Deometric Brown” as the petitioner. In describing the conduct at issue,
the petition alleged: “Resident’s girlfriend is trying to feed the patient that is ordered
not to have food by mouth. [Appellant] feeds this patient without regard to his
personal safety.” An ex parte hearing was held on January 3, 2017, and an ex parte
civil stalking protection order was issued by the magistrate against Appellant the
same day. Appellant was personally served with the ex parte protection order and
appeared for the hearing before the magistrate on January 19, 2017.
{¶3} The magistrate granted the civil stalking protection order after the full
hearing, and upon the trial court’s adoption of the order, it was filed on January 20,
2017. Under the heading of persons protected by the order, the space for the
petitioner contained Petitioner’s name and the space for “Petitioner’s Family or
Household Members” contained, “[D.B.] (as resident of medical care facility).”
Appellant was ordered to stay at least 500 feet away from Petitioner and all other
protected persons named in the order, effective until March 1, 2018. The court
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checked the box finding, “1) the Respondent has knowingly engaged in a pattern of
conduct that caused Petitioner to believe that the Respondent will cause physical
harm or cause or has caused mental distress; and 2) the following orders are
equitable, fair, and necessary to protect the persons named in this Order from
stalking offenses.”
{¶4} The clerk noted service of the protection order in the docket on
Tuesday, January 24, 2017. Thus, service was noted in the docket within three
weekdays. See Civ.R. 6(A) (weekends not included); Civ.R. 58(B) (clerk to note
service in docket within three days); Civ.R. 65.1(C)(3) (service in accordance with
Civ.R. 5(B), which includes service being complete upon mailing). On February 14,
2017, Appellant filed a letter, which spoke of various items she did not wish to waive1
and which voiced a general objection to the protection order without specifying any
grounds. On February 24, 2017, the trial court overruled the objection as untimely
filed.
{¶5} In the meantime, on February 17, 2017, Appellant filed a notice of
appeal from the January 20, 2017 civil stalking protection order. Appellant filed her
brief pro se.
ARGUMENT
{¶6} Appellant’s sole argument on appeal revolves around the following
claim: “the trial court erred by granting this protection order to petitioner on behalf of
Third Party who is not related to him nor is a member of his household.” Appellant
notes a magistrate’s granting of a protection order after a full hearing shall comply
with statutory requirements relating to such orders. See Civ.R. 65.1(F)(3)(c)(i). The
civil stalking protection order was issued under R.C. 2903.214, which cites R.C.
3113.31 for the definition of family or household member. See R.C. 2903.214(A)(3).
{¶7} Pursuant to R.C. 2903.214(C)(1), the petition shall contain an allegation
1 This part of Appellant’s letter tracked the language at the end of Form 10.03-F Civil Stalking
Protection Order, which is for use in cases where the respondent decides to waive the right to a full
hearing. As this case proceeded to a full hearing, this portion of the form order was left blank by the
court.
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the respondent engaged in a violation of R.C. 2903.211 against the person to be
protected. R.C. 2903.211 is the statute defining menacing by stalking. For instance,
“No person by engaging in a pattern of conduct shall knowingly cause another
person to believe that the offender will cause physical harm to the other person or a
family or household member of the other person or cause mental distress to the other
person or a family or household member of the other person.” R.C. 2903.211(A)(1).
The menacing by stalking statute defines family or household member as:
(a) Any of the following who is residing or has resided with the person
against whom the act prohibited in division (A)(1) of this section is
committed:
(i) A spouse, a person living as a spouse, or a former spouse of the
person;
(ii) A parent, a foster parent, or a child of the person, or another person
related by consanguinity or affinity to the person;
(iii) A parent or a child of a spouse, person living as a spouse, or former
spouse of the person, or another person related by consanguinity or
affinity to a spouse, person living as a spouse, or former spouse of the
person.
(b) The natural parent of any child of whom the person against whom
the act prohibited in division (A)(1) of this section is committed is the
other natural parent or is the putative other natural parent.
R.C. 2903.211(D)(11).
{¶8} The corresponding civil stalking protection order statute states: “A
person may seek relief under this section for the person, or any parent or adult
household member may seek relief under this section on behalf of any other family or
household member, by filing a petition with the court.” R.C. 2903.214(C). “As used
in this section: * * * ‘Family or household member’ has the same meaning as in
section 3113.31 of the Revised Code.” R.C. 2903.214(A)(3). The cited statute,
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defines family or household member as follows:
(a) Any of the following who is residing with or has resided with the
respondent:
(i) A spouse, a person living as a spouse, or a former spouse of the
respondent;
(ii) A parent, a foster parent, or a child of the respondent, or another
person related by consanguinity or affinity to the respondent;
(iii) A parent or a child of a spouse, person living as a spouse, or former
spouse of the respondent, or another person related by consanguinity
or affinity to a spouse, person living as a spouse, or former spouse of
the respondent.
(b) The natural parent of any child of whom the respondent is the other
natural parent or is the putative other natural parent.
R.C. 3113.31(A)(3) (with wording is tailored to domestic violence protection orders).
{¶9} Appellant concludes Petitioner did not demonstrate he was permitted to
obtain a civil stalking protection order which protected D.B. However, there are
various barriers to our review.
PROCEDURAL ISSUES
{¶10} Appellant’s brief sets forth factual allegations that are unsupported by a
transcript of proceedings or a proper substitute. For instance, she states Petitioner
“was giving my fiancée Oxycodone and Blood pressure medication at the [medical
facility]. This was clearly a violation of my fiancée’s rights since he did not consent to
take this medication. And since my fiancée could not speak for himself, I spoke up
for him. In retaliation [Petitioner] banned me from this facility and filed this CPO to
keep me away from my fiancée.” She also states, “[D.B.] is not a member of the
petitioner’s family or household member.”
{¶11} We note the petition for a civil stalking protection order listed the
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petitioner as “[J.S.] on behalf of [D.B.]” (emphasis added).2 Appellant’s February 17,
2017 docketing statement claimed Petitioner “is not guardian to” D.B. and her March
27, 2017 docketing statement stated Petitioner “does not have guardianship, legal
custody of” D.B. Docketing statements are not a substitute for briefing, and the briefs
do not reiterate these allegations. In any event, dispositive factual statements in a
brief must be supported by a transcript or proper substitute if no transcript is
available. See, e.g., App.R. 9; Civ.R. 65.1(F)(3)(d)(iv). See also Knapp v. Edwards
Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384 (1980) (“When portions of the
transcript necessary for resolution of assigned errors are omitted from the record, the
reviewing court has nothing to pass upon and thus, as to those assigned errors, the
court has no choice but to presume the validity of the lower court's proceedings, and
affirm.”).3
{¶12} Without a transcript, we cannot discern the relationships involved in this
case. We cannot presume there was insufficient evidence of Petitioner’s authority to
file the petition on behalf of D.B. or otherwise have him included in the category of
protected persons. The face of the order does establish relationships. The
parenthetical under D.B.’s name in the order “(as resident of medical care facility)”
does not require one to conclude there was a lack of evidence to show that D.B.
could properly be protected by the order.
2 Pursuant to Civ.R. 17(A), a guardian can bring an action in his own name as a representative
(without joining the party on whose behalf the action was filed). Furthermore:
Whenever a minor or incompetent person has a representative, such as a guardian
other like fiduciary, the representative may sue or defend on behalf of the minor or
incompetent person. If a minor or incompetent person does not have a duly
appointed representative the minor may sue by a next friend or defend by a guardian
ad litem. When a minor or incompetent person is not otherwise represented in an
action the court shall appoint a guardian ad litem or shall make such other order as it
deems proper for the protection of such minor or incompetent person.
Civ.R. 17(B).
3 It is also noted there is no indication the transcript of proceedings was not available as Appellant’s
initial praecipe contains the court reporter’s acknowledgement stating the transcript was estimated to
be 22 pages and would be completed 14 days after receipt of payment. Appellant subsequently
indicated no transcript of proceedings would be filed. In any event, an alternative to a transcript was
not attempted.
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{¶13} Moreover, this case was heard by a magistrate, and we are asked to
review the trial court’s adoption of the magistrate’s order. Civ.R. 65.1 applies to civil
protection orders. The provisions for issuing and objecting to a magistrate’s decision
contained in Civ.R. 53(D)(3) are inapplicable. See Civ.R. 65.1(F)(3)(b) (“A
magistrate's denial or granting of a protection order after full hearing under this
division 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.”). See
also Civ.R. 65.1(F)(3)(c)(iv) (the court’s adoption of the magistrate’s protection order
after a full hearing is not subject to Civ.R. 53(D)(4)(e), which involves a stay of
execution upon the filing of timely objections).
{¶14} A magistrate’s order granting a protection order after a full hearing is
not effective unless adopted by the court. Civ.R. 65.1(F)(3)(c)(i). See also Civ.R.
65.1(F)(3)(c)(v) (court’s adoption is effective when signed by the court and filed with
the clerk). The court may adopt the magistrate’s granting (or denying) of the full
hearing protection order “upon review of the order and a determination that there is
no error or law or other defect evident on the face of the order.” Civ.R.
65.1(F)(3)(c)(ii). This review involves a review of the civil protection order signed by
the magistrate after the full hearing, i.e., the petition, transcript of proceedings, or
other documents are not reviewed by the trial court at this stage. We also note the
petition is not evidence at the full hearing, and the court should not consider it in
determining whether to grant the order. Felton v. Felton, 79 Ohio St. 3d 34, 43, 679
N.E.2d 672 (1997).
{¶15} A party may file written objections to the court’s adoption of the
magistrate’s granting of the full hearing protection order within fourteen days of the
court’s filing of the order. Civ.R. 65.1(F)(3)(d)(i). To be precise, we note the rule
does not provide for an objection to the magistrate’s decision as in Civ.R. 53, but
rather, it provides for an objection to the trial court’s decision adopting the
magistrate’s decision. See id. See also Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d
1170, ¶ 26 (2d Dist.) (also observing the rule does not provide for a request for
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findings of fact and conclusions of law as does Civ.R. 53). The objection shall not
stay execution of the order. Civ.R. 65.1(F)(3)(d)(ii).
“A party filing objections under this division has the burden of showing
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).
{¶16} Where an objection fails to state the grounds for objecting and merely
proffers, “I object to the protection order,” a respondent will have a difficult time
arguing she attempted to meet her burden of showing an error of law or other defect
evident on the face of the order, or the evidence was insufficient to support the
granting of the protection order, or some other abuse of discretion regarding a term of
the order. Furthermore: “Objections based upon evidence of record shall be
supported by a transcript of all the evidence submitted to the magistrate or an
affidavit of that evidence if a transcript is not available.” Civ.R. 65.1(F)(3)(d)(iv) (and
stating “[t]he objecting party shall file the transcript or affidavit”). Besides the fact that
no transcript was provided for this court’s review, there was no transcript provided for
the trial court’s review. It is a party’s obligation, not the court’s, to order a transcript.
The trial court also had no obligation to conduct a review of items in the file, such as
the petition or the ex parte order, where the objections do not refer the court to these
items. This is inherent in the rule’s burden allocation whereby “the party filing
objections has the burden of showing” the objection has merit. See Civ.R.
65.1(F)(3)(d)(iii).
{¶17} Even more, Appellant’s objection was not timely filed. Appellant had
fourteen days from the January 20, 2017 civil stalking protection order to file
objections. See Civ.R. 65.1(F)(3)(d)(i). The letter containing the statement “I object”
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was not filed until February 14, 2017. In cases subject to Civ.R. 53, the lack of timely
objections is not necessarily fatal to every issue sought to be raised on appeal. For
instance, Civ.R. 53(D)(3)(b)(iv) provides for waiver of the right to assign the adoption
of factual findings or legal conclusions on appeal in the absence of an objection, but
this subdivision is prefaced with, “Except for a claim of plain error * * *.” Civ.R.
53(D)(3)(b)(iv). See also Civ.R. 53(D)(5) (a party can ask the trial court to allow a
reasonable extension of time to file objections to the magistrate’s decision if the party
shows good cause).
{¶18} However, equivalent provisions are not contained in Civ.R. 65.1. In
fact, Civ.R. 65.1(G) prohibits the within appeal due to the failure to file timely
objections from the trial court’s adoption of the magistrate’s granting of the protection
order. Civ.R. 65.1(G), citing Civ.R. 65.1(F)(3)(d). This is due to an amendment to
the rule, effective July 1, 2016, which specifies “a party must timely file objections to
such an order under division (F)(3)(d) of this rule prior to filing an appeal * * *.” Civ.R.
65.1(G). In whole, the pertinent division provides:
(G) Final order; objections prior to appeal; stay of appeal
Notwithstanding the provisions of any other rule, an order entered by
the court under division (F)(3)(c) or division (F)(3)(e) of this rule is a
final, appealable order. However, a party must timely file objections to
such an order under division (F)(3)(d) of this rule prior to filing an
appeal, and the timely filing of such objections shall stay the running of
the time for appeal until the filing of the court's ruling on the objections.
Civ.R. 65.1(G) (emphasis added). This division formerly read:
Notwithstanding the provisions of any other rule, an order entered by
the court under division (F)(3)(c) of this rule, with or without the
subsequent filing of objections, is a final, appealable order that can be
appealed upon issuance of the order. The timely filing of objections
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under division (F)(3)(d) of this rule shall stay the running of the time for
appeal until the filing of the court's ruling on the objections.
Former Civ.R. 65.1(G) (emphasis added to words deleted by July 1, 2016
amendment). The deleted portion is telling. It helped to enable the added portion
requiring a party to file timely objections to the trial court’s adoption of the
magistrate’s decision on the protection order prior to filing an appeal.
{¶19} The former version of the rule provided alternatives: an immediate
appeal of the court’s adoption of the magistrate’s decision on the protection order or
the filing of timely objections in the trial court. Schneider v. Razek, 2015-Ohio-410,
28 N.E.3d 591, ¶ 31 (8th Dist.), citing 2012 Staff Note to Civ.R. 65.1(F)(3)(d)(i)
(stating the objection process is “an alternative to immediate to appeal”). To provide
context for the subsequent amendment, we briefly review the pertinent portion of the
Eighth District’s Schneider case. While the prior version of Civ.R. 65.1(G) was in
effect, the Eighth District ruled “the filing of a valid notice of appeal trumps the
objections, i.e., that the notice of appeal renders the objections that were previously
filed under Civ.R. 65.1(F)(3)(d)(i) moot.” Schneider, 2015-Ohio-410 at ¶ 32. A
dissenting judge agreed the rule provided two options (object or appeal), but thought
the appellate court should remand for the trial court to rule on the objections. Id. at
¶ 77, 82 (Stewart, J., dissenting). The dissent opined the filing of a notice of appeal
as the 30-day time period approaches cannot reasonably be considered an
abandonment of the previously filed objections, noting “it is not surprising that
counsel would, in an abundance of caution, file a notice of appeal in order to
preserve the right to appeal even though, as previously mentioned, the timely filing of
objections stays the running of the time for appeal until the court rules on the
objections.” Id. at fn.9.
{¶20} It appears the July 1, 2016 amendments to Civ.R. 65.1 were made
partly in response to the Eighth District’s Schneider case. For instance, a 2016 Staff
Note explains Civ.R. 65.1(F)(3)(e) was “added to address issues discussed in
Schneider v. Razek, 2015-Ohio-410 (8th Dist.) relating to proceedings on motions for
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renewal, contempt, modification, or termination of civil protection orders.” Another
2016 Staff Note describes how division (G)’s amendment, requiring objections prior
to filing an appeal from a trial court’s “otherwise appealable” adoption of the
magistrate’s ruling, was to afford the trial court an opportunity to review the transcript
and to create a more robust record for reviewing courts. The published summary of
the July 1, 2016 amendments to the Civil Rules states the following as to Civ.R. 65.1:
“The amendments clarify ambiguities regarding objections and appeal of a court’s
adoption, modification, or rejection of a magistrate’s denial or granting of a protection
order after a full hearing.” See
http://www.supremecourtofohio.gov/ruleamendments/documents/
P%20%20P%20Final%20Rules%20June%2030%202016.pdf.
{¶21} To reiterate, division (G)’s first sentence was amended from stating the
court’s adoption of the magistrate’s granting (or denial) of a civil protection order is a
final appealable order that can be appealed upon issuance of the order “with or
without the subsequent filing of objections” to stating such order “is a final appealable
order. However, a party must timely file objections * * * prior to filing an appeal.”
Where a civil protection order is issued by a magistrate and made effective due to
adoption by the trial court under Civ.R. 65.1(F)(3)(c), the alternative of immediately
appealing the protection order without filing timely objections is no longer available
after the July 1, 2016 amendments to the rule. In filing objections, the aggrieved
party “has the burden of showing that an error of law or other defect is evident on the
fact of the order,” among other things. Civ.R. 65.1(F)(3)(d)(iii). This is distinct from
Civ.R. 53. There is no provision in Civ.R. 65.1 for an appellate court’s plain error
review in the absence of objections as contained in Civ.R. 53(D)(3)(b)(iv). Instead,
Civ.R. 65.1 provides: “a party must file timely objections to such an order under
division (F)(3)(d) of this rule prior to filing an appeal * * *.” Civ.R. 65.1(G).
{¶22} Division (F)(3)(d) defines timely objections as those “filed within
fourteen days of the court’s filing of the order.” Appellant’s letter voicing a general
objection was not filed within fourteen days of the court’s filing of the civil stalking
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protection order. The trial court therefore overruled the objection as untimely. Even
if the notice of appeal could be amended to add that judgment (which was not done
here), Appellant does not present arguments as to the decision finding the objections
untimely. Without a timely-filed objection, Appellant is not permitted to appeal the
trial court’s adoption of the magistrate’s granting of the protection order. Civ.R.
65.1(G).4 Consequently, this appeal is dismissed.
Donofrio, J., concurs.
Waite. J., concurs.
4As aforementioned, even if the rule permitted plain error appellate review in the absence of timely
objections or a review similar to the former rule, we have not been provided with a transcript in order to
ascertain the relationship between Petitioner and D.B.