Daniels v. Daniels

[Cite as Daniels v Daniels, 2021-Ohio-2076.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
JULIA DANIELS, :
:
Petitioner-Appellee, : Case No. 20CA3910
:
v. :
: DECISION AND JUDGMENT
JEFFERSON DANIELS, : ENTRY
:
Respondent-Appellant. :
_____________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Julia Daniels, Portsmouth, Ohio, Appellee Pro Se.1
_____________________________________________________________
Smith, P.J.
{¶1} Jefferson Daniels appeals the February 28, 2020 domestic
violence civil protection order issued by the Scioto County Common Pleas
Court-Domestic Relations Division. Mr. Daniels, “Appellant,” contends that
the trial court’s decision to enter the five-year civil protection order is
against the manifest weight of the evidence due to a lack of credible
witnesses and documentary evidence. However, upon review we find the
1
Appellee has not filed a responsive pleading or otherwise participated in this appeal.
Scioto App. No. 20CA3910 2
appeal must be dismissed due to Appellant’s failure to file written objections
to the magistrate’s decision, a mandatory requirement of Civ.R. 65.1 (G).
FACTS
{¶2} On February 19, 2020, Julia Daniels, “Appellee,” filed a petition
of domestic violence against Respondent/Appellant. At that time, the parties
were in the process of divorce and had been separated since October 2019.
Appellee’s petition contained allegations such as “50 and 60 threatening
calls and texts per day to me”; “trying to force his way into my home”; “still
demanding sexual relations as marital rights”; “follows me all the time to see
if I’m having an affair”; and “leaving threatening notes on doors to keep me
upset.”
{¶3} Appellee requested the court grant an order to protect her
and other family members named in the petition. The other individuals
listed in the petition were Appellee’s brother, Appellee’s handicapped sister,
and Appellee’s two adult sons. Appellee was granted an ex parte order the
same day.
{¶4} Appellant was personally served a summons, notice of hearing
on February 28, 2020, order and certified copy of the petition, and the ex
parte order. The parties appeared on February 28th and the full hearing took
Scioto App. No. 20CA3910 3
place. The only witnesses were Appellant and Appellee, both unrepresented
by counsel.
{¶5} The substance of Appellee’s testimony only slightly amplified
the allegations in her petition. When Appellant testified, he denied texting
Appellee 50-60 times a day. He denied threatening her or her family.
Appellant claimed he did not recall forcing his way in her home and
breaking a screen door. He indicated the marital separation had “snowballed
into something else.” Appellant concluded by testifying that “I don’t think I
deserve this because I’ve never had any violent contact with anybody
really.”
{¶6} At the conclusion of the hearing, the magistrate found:
Alright, based on the testimony that’s been presented,
I’m gonna find that the Court does have jurisdiction and
I’m going to order that you are restrained from
committing acts of abuse over the threats against the
Petitioner, her. ***Then the Court further finds by a
preponderance of the evidence that the Petitioner and the
Petitioner’s family members are in danger of or have
been a victim of domestic violence committed by the
Respondent and the following orders are equitable, fair
and necessary to protect them from future domestic
violence.
{¶7} The magistrate’s order was reviewed and adopted by the trial
Scioto App. No. 20CA3910 4
Court, and the Appellant was issued a full five-year order of protection that
same day. Appellant did not file written objections pursuant to Civ.R.
65.1(G). This timely appeal followed.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT’S DECISION TO ENTER
A FIVE-YEAR CIVIL PROTECTION ORDER
AGAINST APPELLANT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶8} Appellant argues the trial court’s decision was against the
manifest weight of the evidence for several reasons. First, Appellant asserts
there was scant testimony from Appellee. Appellant also contends there was
no corroborative evidence, such as additional witnesses on Appellee’s behalf
or exhibits. Finally, Appellant points out the trial court did not make explicit
determinations of credibility of the only witnesses, Appellant and Appellee.
For the reasons which follow, however, we decline to consider the merits of
this case and must dismiss the appeal.
LEGAL ANALYSIS
{¶9} Appellant’s appeal raises a jurisdictional question this court has
not previously addressed. The trial court granted Appellant a domestic
violence civil protection order (DVCPO) pursuant to R.C. 3113.31. The
rules governing civil protection orders are set forth in Civ.R. 65.1. See
Scioto App. No. 20CA3910 5
Casto v. Lehr, 5th Dist. Tuscarawas No. 2020AP0002, 2020-Ohio-3777, at
¶ 17.
{¶10} According to Civ.R. 65.1(F)(3), civil protection order petitions
may be referred to a magistrate for determination, but “[a] magistrate's
denial or granting of a protection order after a 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). Casto, supra. A magistrate's denial or granting of a
protection order after a full hearing is not effective unless adopted by the
court. Civ.R. 65.1(F)(3)(c). Casto, supra. “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, or any terms of
such an order, within fourteen days of the court's filing of the order.” Civ.R.
65.1(F)(3)(d)(i). Objections based on evidence of record must be supported
by a transcript or, if a transcript is not available, an affidavit of that
evidence. Civ.R. 65.1(F)(3)(d)(iii). An order entered by the court under
Civ.R. 65.1(F)(3)(c) or (e) is a final, appealable order. Civ.R. 65.1(G).
{¶11} The Casto court explained:
Pursuant to a July 1, 2016 amendment to Civ.R. 65.1,
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
Scioto App. No. 20CA3910 6
stay the running of the time for appeal until the filing of
the court's ruling on the objections.” Civ.R. 65.1(G).
The amendment was specifically made “to require that a
party must file objections prior to filing an appeal from a
trial court's otherwise appealable adoption, modification,
or rejection of a magistrate's ruling.” C.F. v. T.H.R., 10th
Dist. Franklin No. 18AP-536, 2019-Ohio-488, at ¶ 5
citing Civ.R. 65.1, Division (G) notes. As the 2016 Staff
Note explains: “[t]his amendment is grounded on two
key principles. First, it promotes the fair administration
of justice, including affording the trial court an
opportunity to review the transcript and address any
insufficiency of evidence or abuse of discretion that
would render the order or a term of the order unjust.
Second, it creates a more robust record upon which the
appeal may proceed.” Post v. Leopardi, 11th Dist.
Trumbull No. 2019-T-0061, 2020-Ohio-2890, at ¶ 13.
{¶12} The Casto court also pointed out its reliance on the authority of
the Second, Third, Sixth, Seventh, Ninth, and Tenth appellate districts whom
have addressed Civ.R. 65.1(G) and the failure to file timely objections prior
to filing an appeal. Casto, supra, at ¶ 19. See also M.K. v. A.C.K., 5th Dist.
Fairfield No. 2019 CA 00023, 2020-Ohio-400. These courts have held the
requirements of Civ.R. 65.1(G) are mandatory and a party's failure to file
timely objections to a trial court's adoption of a magistrate's decision
granting or denying a civil protection order prior to filing an appeal is a
violation of Civ.R. 65.1(G) and as such, the appeal of the civil protection
order must be dismissed. Casto, supra. See C.F. v. T.H.R., 10th Dist.
Franklin No. 18AP-536, 2019-Ohio-488 (dismissing appeal pursuant to
Scioto App. No. 20CA3910 7
Civ.R. 65.1(G)); K.U. v. M.S., 7th Dist. Mahoning No. 16 MA 0165, 2017-
Ohio-8029, ¶ 17-18 (stating that without objections filed appellate court has
no jurisdiction); A.S. v. D.S., 9th Dist. Medina No. 16CA0080-M, 2017-
Ohio-7782, ¶ 5-6 (dismissing appeal without addressing merits pursuant to
Civ.R. 65.1(G)); Hetrick v. Lockwood, 6th Dist. Sandusky No. S-17-014,
2018-Ohio-118, ¶ 8 (dismissing appeal when appellant failed to file timely
objections to trial court's adoption of magistrate's granting of CSPO after full
hearing); Danison v. Blinco, 3rd Dist. Crawford, No. 3-18-19, 2019-Ohio-
2767, ¶ 8 (failure to file objections to trial court's adoption of magistrate's
decision failed to preserve appellant's arguments for appeal). See also, Post,
supra, 11th Dist. Trumbull No. 2019-T-0061, 2020-Ohio-2890, ¶ 25
(dismissing appeal when appellant failed to file timely objections pursuant to
Civ.R. 65.1(G)). But see Saqr v. Najr, 1st Dist. No. 201-7-Ohio-8142, at
¶¶ 18-19, (where Civil Rule 65.1 was amended during pendency of case,
Appellant did not file objections to magistrate’s denial of motion to
terminate CPO, and the form used to issue the decision on appellant’s
motion contained no notice that objections must be filed, appellant was
allowed to raise arguments for first time on appeal).
{¶13} In this case, Appellant did not file objections. We find the
reasoning expressed by our colleagues in the Second , Third, Fifth, Sixth,
Scioto App. No. 20CA3910 8
Seventh, Tenth, and Eleventh districts to be persuasive. We also find that the
language of Civ.R. 65.1(G) is mandatory and that a party’s failure to timely
file objections to the granting or dismissing of a civil protection order, prior
to filing an appeal is a violation of Civ.R.65.1(G) and therefore the appeal
must be dismissed. Consequently, Appellant’s appeal herein must also be
dismissed.
{¶14} However, we are troubled by the language printed on the
DVCPO form which Appellant was served after the full hearing. In this
case, Appellant’s protection order is contained on Form 10:01 9: Domestic
Violence Civil Protection Order (CPO) full hearing, Amended: March 1,
2014. Appellant’s appeal rights are set forth in pertinent part as follows:
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) * * *.
{¶15} The Second District considered a similar issue with regard to
the standard language printed on a DVCPO form in Florenz v. Omalley,
2020-Ohio-4487, 158 N.E.3d 1009 (2d Dist.). In Omalley, the DVCPO
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
Scioto App. No. 20CA3910 9
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.” Id.
at ¶ 13. The Omalley court concluded that 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 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. Omalley, supra, at ¶ 14. We agree.
{¶16} The above-referenced language in the DVCPO provided to
Appellant, which refers to Civ.R. 65.1(C)(3), is the only direction Appellant
would have had to guide him to the other requirements of the full rule, most
importantly, Civ.R. 65.1(G). We express the same concerns regarding
notification as the Second District did in Omalley and Steele v. Steele, 2d
Dist. Champaign No. 2020-CA3, 2021-Ohio-148, at ¶ 7:
Scioto App. No. 20CA3910 10
It is clear that, in the absence of objections, Mr. Steele
may not challenge the trial court’s decision on appeal. * *
* 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 [OMalley], the
court is obligated to provide complete and accurate
information.
See also, Danison, supra, at fn1.
{¶17} It is clear and unfortunate that Appellant received incomplete
information on February 28, 2020. However, it is also well-established that
pro se litigants are held to the same rules, procedures, and standards as
litigants who are represented by counsel. See O’Rourke v. O’Rourke, 4th
Dist. Scioto No. 08CA3253, 2010-Ohio-1243, at ¶ 26, (Internal citations
omitted). Litigants who choose to proceed pro se are presumed to know the
law and correct procedure and are held to the same standards as other
litigants. See Capital One Bank, v. Rodgers, 5th Dist. Muskingum No.
CT2009-0049, 2010-Ohio-4421, ¶ 31. See also Tilbrook v. Francis, 12th
Dist. Warren No. CA2017-06-091, 2018-Ohio-4064, at ¶ 26 (Though
Scioto App. No. 20CA3910 11
incarcerated and proceeding pro se, appellant was still bound by the
requirement of Civ.R. 65.1 in objecting to order issuing DVCPO).2
{¶18} Based on the foregoing, we decline to consider the merits of
Appellant’s argument and find that the appeal must be dismissed.
APPEAL DISMISSED.
2
Appellant represented himself at the full hearing. The record indicates he obtained legal representation on
or about March 25, 2020 when counsel filed the notice of appeal.
Scioto App. No. 20CA3910 12
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and costs be assessed
to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County 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.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
___________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.