Steele v. Steele

[Cite as Steele v. Steele, 2021-Ohio-148.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
:
JESSICA P. STEELE :
: Appellate Case No. 2020-CA-3
Petitioner-Appellee :
: Trial Court Case No. 2019-DR-258
v. :
: (Appeal from Common Pleas
KENNETH A. STEELE, II : Court – Domestic Relations Division)
:
Respondent-Appellant :
...........
OPINION
Rendered on the 22nd day of January, 2021.
...........
LUCINDA WELLER, Atty. Reg. No. 0070667, 525 Jefferson Avenue, Suite 400, Toledo,
Ohio 43604
Attorney for Petitioner-Appellee
GREGG LEWIS, Atty. Reg. No. 0041229, 625 City Park Avenue, Columbus, Ohio 43206
Attorney for Respondent-Appellant
.............
DONOVAN, J.
-2-
{¶ 1} Kenneth A. Steele, II appeals from the trial court’s order granting a petition
for a civil stalking protection order filed by his former wife, Jessica P. Steele. The court
granted an order of protection for the parties’ minor child, to be in effect for five years.
Mr. Steele cannot challenge on appeal the trial court’s grant of a civil protection order
because he failed to file objections in the trial court, as required by Civ.R. 65.1. As such,
the judgment of the trial court is affirmed.
{¶ 2} This Court recently discussed an amendment to Civ. R. 65.1 as follows:
“When a magistrate has denied or granted a protection order after a
full hearing, the court may adopt the magistrate's denial or granting of the
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). “[T]he magistrate's grant or denial of a protection order
after a full hearing is not effective until adopted by the court.” Heimann v.
Heekin, 1st Dist. Hamilton No. C-130613, 2014-Ohio-4276, ¶ 7, citing Civ.R.
65.1(F)(3)(c). A trial court's adoption, modification, or rejection of a
magistrate's denial or granting of a protection order after a full hearing
becomes effective when it is signed by the court and filed with the clerk.
Civ.R. 65.1(F)(3)(c)(v).
Pursuant to Civ.R. 65.1(G), a trial court's decision to adopt a
magistrate's decision that grants or denies a [civil protection order] is a final,
appealable order. However, as of July 1, 2016, the rule requires a party to
file timely objections to the trial court's order prior to filing an appeal. See
-3-
Civ.R. 65.1(G). Written objections must be filed within 14 days of the filing
of the trial court's order. Civ.R. 65.1(F)(3)(d)(i).
Since the July 1, 2016 changes to Civ.R. 65.1(G), several appellate
districts have held that an appeal must be dismissed if timely objections
were not filed. See, e.g., Casto v. Lehr, 5th Dist. Tuscarawas No. 2020 AP
02 0002, 2020-Ohio-3777, ¶ 19; Hetrick v. Lockwood, 6th Dist. Sandusky
No. S-17-014, 2018-Ohio-118; J.S. v. D.E., 7th Dist. Mahoning No. 17 MA
0032, 2017-Ohio-7507; K.R. v. T.B., 10th Dist. Franklin No. 17AP-302,
2017-Ohio-8647; Post v. Leopardi, 11th Dist. Trumbull No. 2019-T-0061,
2020-Ohio-2890.
In contrast, this court has not found the failure to file objections to be
jurisdictional. See, e.g., Fecke v. Sizemore, 2d Dist. Montgomery No.
28536, 2020-Ohio-2851 (affirming a protection order due to appellant's
failure to file objections); Whatley v. Canales, 2d Dist. Montgomery No.
28382, 2020-Ohio-213; Runkle v. Stewart, 2d Dist. Miami No. 2018-CA-27,
2019-Ohio-2356 (noting that the failure to file objections required dismissal,
but nonetheless affirming the trial court's [protection order] due to failure to
file objections); Anderson v. Gregory, 2d Dist. Montgomery No. 28277,
2019-Ohio-2346. See also Danison v. Blinco, 3d Dist. Crawford No. 3-18-
19, 2019-Ohio-2767. Nevertheless, a party may not challenge the
protection order on appeal if objections were not filed. Id.Florenz v. Omalley, 2020-Ohio-4487, __ N.E.3d __, ¶ 7-10 (2d Dist.).
{¶ 3} Civ.R. 65.1 is clear that magistrate decisions after a full hearing are not
-4-
subject to the requirements in Civ.R. 53(D)(2) or (3). Florenz at ¶ 12, citing Civ.R.
65.1(F)(3)(b) and Runkle at ¶ 7. Further, a protection order “need not comply with Civ.R.
53(D)(3)(a)(iii), which requires a magistrate decision to ‘indicate conspicuously that a
party shall not assign as error on appeal the court's adoption of any factual finding or legal
conclusion, * * * unless the party timely and specifically objects to that factual finding or
legal conclusion as required by Civ.R. 53(D)(3)(b).’ ” Id.{¶ 4} The protection order herein, on the final page, stated: “NOTICE OF FINAL
APPEALABLE ORDER Copies of this Order, which is a final appealable order, were
served on the parties indicated pursuant to Civ.R. 65.1(C)(3) on 23 day of DEC, 2020.”
A separate “Notice of Final Appealable Order” was also filed with the protection order.
{¶ 5} In Florenz, this Court described the protection order at issue therein as
follows:
* * * [T]he [protection order] highlighted portions of Civ.R. 65.1. It
stated that the magistrate's order was not governed by Civ.R. 53(D), timely
objections did not stay the execution of the order, objections had to conform
to Civ.R. 65.1(F)(3)(d), the trial court's adoption of the magistrate's order
was not effective until signed by the court and filed with the clerk, and
“[n]otwithstanding the provisions of any other rule, an order entered by this
court under Civ.R. 65.1(F)(3)(c) is a final appealable order that can be
appealed upon issuance of the order.”
In our view, the notification regarding Civ.R. 65.1 suggested that
objections were optional and that the order could be appealed immediately
without filing objections. Specifically, the inclusion of the language from
-5-
Civ.R. 65.1(G) indicating that the order could be immediately appealed was
misleading in the absence of additional information that timely objections
were required prior to filing an appeal. While the magistrate was not
required by rule to inform the parties about the need to object, the decision
to provide some information about Civ.R. 65.1 to the parties triggered an
obligation to provide complete and accurate information.
Florenz at ¶ 13-14.
{¶ 6} This Court affirmed the trial court’s decision, noting as follows:
Even if we were to consider Omalley's arguments in light of the Civ.R.
65.1 language in the [civil protection order], we would nevertheless find no
basis to reverse the order. Omalley failed to provide a transcript of the full
hearing before the magistrate, as required by Civ.R. 65.1(F)(3)(d)(iv). In
the absence of a written transcript of the hearing, we have no record of the
evidence presented to the magistrate, and we cannot speculate what
testimony was given at that hearing. Williams v. Foster, 2d Dist.
Montgomery No. 28416, 2019-Ohio-4601, ¶ 10, citing Miller v. Tye, 2d Dist.
Montgomery No. 26277, 2015-Ohio-199, ¶ 90. Rather, we must presume
that the evidence supported the magistrate's findings. See Kahler v.
Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 34.
Id. at ¶ 15.
{¶ 7} It is clear that, in the absence of objections, Mr. Steele may not challenge the
trial court’s decision on appeal. However, we again express concern about the trial
court’s language in its protection order, which merely provides that the order is final and
-6-
appealable, and accordingly suggests that objections are not required. We caution that
a trial court’s judgment granting or denying a civil protection order should not imply that
objections are unnecessary or optional. The final sentence of Civ.R. 65.1(G) provides:
“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.” We are
concerned that the court partially advised the parties that the protection order was final
and appealable, but failed to fully advise them that objections are nevertheless required.
As we noted in Florenz, the court is obligated to provide complete and accurate
information.
{¶ 8} Finally, we note that pursuant to R.C. 3113.31, either party may move to
modify or terminate a civil protection order. R.C. 3113.31(E)(8)(b) provides:
* * * The moving party has the burden of proof to show, by a
preponderance of the evidence, that modification or termination of the
protection order or consent agreement is appropriate because either the
protection order or consent agreement is no longer needed or because the
terms of the original protection order or consent agreement are no longer
appropriate.
“When ruling on a motion to terminate a [civil protection order], a trial court must consider
‘all relevant factors,’ including the factors identified in R.C. 3113.31(E)(8)(c).” Brown v.
Naff, 2d Dist. Miami No. 2011-CA-17, 2012-Ohio-1770, ¶ 10.
{¶ 9} The order of the trial court is affirmed.
.............
-7-
FROELICH, J. and HALL, J., concur.
Copies sent to:
Lucinda Weller
Gregg Lewis
Hon. Brett A. Gilbert