Nelson v. Koester

[Cite as Nelson v. Koester, 2011-Ohio-5506.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96723
RANDALL NELSON
PLAINTIFF-APPELLANT
vs.
CHRISTINA R. KOESTER
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-335134
BEFORE: Rocco, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: October 27, 2011
2
FOR APPELLANT
Randall J. Nelson, pro se
803 Tarra Oaks Drive
Findlay, Ohio 45840
FOR APPELLEE
Christina R. Koester, pro se
155-1/2 Burger Street
Toledo, Ohio 43605
KENNETH A. ROCCO, J.:
{¶ 1} In this appeal, brought upon the accelerated calendar pursuant to App.R.
11.1 and Loc.App.R. 11.1, plaintiff-appellant, Randall Nelson (“appellant”), appeals the
trial court’s decision overruling his objections and adopting the magistrate’s decision
denying his petition for a domestic violence civil protection order. For the following
reasons, we affirm.
{¶ 2} On February 3, 2011, appellant filed a petition for a domestic violence civil
protection order against defendant-appellee, Christina Koester (“appellee”). After the
court denied appellant an ex parte temporary protection order, a hearing was held on
February 17, 2011. The appellant appeared pro se and appellee failed to appear despite
notice.
3
{¶ 3} After the hearing, the magistrate issued her decision on February 22, 2011,
denying appellant’s petition for a domestic violence civil protection order. On March 2,
2011, appellant filed objections to the magistrate’s decision and submitted an affidavit in
lieu of a transcript of proceedings. On April 7, 2011, the trial court issued a judgment
entry overruling the appellant’s objections and adopting the magistrate’s decision in its
entirety.
{¶ 4} Appellant now appeals and presents the following assignment of error for
our review:
{¶ 5} “The trial court erred when it did not take into consideration the
affidavit that the petitioner filed in lieu of the transcript of the full-hearing when he
made his objections to the magistrates [sic] decision.”
{¶ 6} In his sole assignment of error, appellant argues that the trial court erred in
failing to consider his affidavit in lieu of a transcript when overruling his objections and
adopting the magistrate’s decision. We disagree.
{¶ 7} Civ.R. 53(D)(3)(b)(iii) provides that objections to a magistrate’s factual
finding “shall be supported by a transcript of all the evidence submitted to the magistrate
relevant to that finding or an affidavit of that evidence if a transcript is not available.”
The transcript of appellant’s hearing was unavailable for purposes of the rule because
appellant claims to be indigent and unable to afford it. See Gumins v. Ohio Dept. of
Rehab. & Corr., Franklin App. No. 10AP–941, 2011-Ohio-3314, ¶10. Therefore, Civ.R.
4
53(D)(3)(b)(iii) mandates that appellant’s objections be supported by an affidavit of
evidence. “An affidavit under that rule must contain a description of all the relevant
evidence, not just the evidence deemed relevant by the party objecting to the magistrate’s
findings.” Gumins, supra at ¶13.
{¶ 8} In this case, appellant’s affidavit was not sufficient under Civ.R.
53(D)(3)(b)(iii). The affidavit presented only the evidence appellant considered
important even though the rule requires that the affidavit describe all the relevant
evidence presented at the hearing. When comparing appellant’s affidavit with the
magistrate’s factual findings, it is apparent the affidavit omits evidence. See Gumins,
supra at ¶13. Accordingly, appellant’s affidavit fails to meet the requirements of Civ.R.
53 and could properly be rejected as a basis of support for appellant’s objections.
Nonetheless, there is nothing in appellant’s affidavit that would have prompted the
magistrate to issue a civil protection order. Appellant’s sole assignment of error is
overruled and the judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
5
__________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR