Heimann v. Heekin

[Cite as Heimann v. Heekin, 2014-Ohio-4276.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
KATHRYN HEIMANN, : APPEAL NO. C-130613
TRIAL NO. DV-1200806
Plaintiff-Appellant, :
vs. : O P I N I O N.
ALBERT E. HEEKIN, IV, :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: September 30, 2014
Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon and Thomas J. Blatz, Jr., for
Plaintiff-Appellant,
Heekin & Heekin and Christopher R. Heekin, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Judge.
{¶1} Bringing forth two assignments of error, plaintiff-appellant Kathryn
Heimann appeals the trial court’s dismissal of her petition for a civil protection order
(“CPO”) under R.C. 3113.31. Because Heimann filed her notice of appeal out of time,
this court lacks jurisdiction to entertain the appeal and must dismiss it.
{¶2} In August 2012, Heimann filed an ex parte petition for a CPO against
defendant-appellee Albert E. Heekin, IV. The matter was referred to a magistrate,
who granted the CPO and set it to expire in August 2013. A full hearing was then
scheduled and ultimately occurred on November 1, 2012. At the start of the hearing,
Heekin informed the magistrate that he was ready to proceed. Heimann then
presented her case and rested. At that point, Heekin requested a continuance in
order to bring in witnesses to rebut Heimann’s testimony. Because the magistrate
believed that Heekin was using the hearing as a fishing expedition, his request for a
continuance was denied. The next day, the magistrate ordered the CPO to become
permanent and remain in effect an additional five years until November 1, 2017.
{¶3} Heekin filed objections to the magistrate’s grant of the protection
order, arguing, among other things, that it was against the manifest weight of the
evidence. Two months later, Heekin, citing Civ.R. 53, moved the court to take
additional evidence and rehear the case. The trial court journalized an entry on
March 18, 2013, granting Heekin’s objections, rejecting the magistrate’s grant of the
protection order, and resetting the matter for a full hearing before the court. But
after repeated joint requests to continue the matter, the trial court eventually
dismissed Heimann’s petition for a protection order on August 22, 2013.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Heimann appealed the dismissal by filing her notice of appeal on
September 19, 2013. But this appeal was untimely. Under Civ.R. 65.1, Heimann
should have appealed from the trial court’s decision, journalized on March 18, 2013,
which rejected the magistrate’s grant of the protection order. From a review of the
record, it appears that Heimann may have been misled by the trial court’s
misunderstanding of which civil rule governed petitions for protection orders
brought under R.C. 3113.31.
{¶5} Because this case arose after July 1, 2012, it was governed by the
provisions of the newly-adopted Civ.R. 65.1. Civ.R. 65.1 uniquely applies to the
special statutory proceeding set forth in R.C. 3113.31, which provides the
requirements for the entry of a CPO against adults for the protection of victims of
domestic violence.
{¶6} Under Civ.R. 65.1(F)(3), civil protection petitions may be referred to a
magistrate for determination, but civil protection orders are not “magistrate orders”
as contemplated by Civ.R. 53(D) and are not subject to the requirements of Civ.R. 53
related to magistrate’s orders. This is because Civ.R. 65.1 had been enacted, in part,
to expedite the process for obtaining a protection order after a full hearing, and some
of the provisions of Civ.R. 53 are incompatible with this goal, namely the
“independent review by the court of magistrate ‘decisions’ rendered after hearing,
and the filing and consideration of objections to those magistrate ‘decisions.’ ” 2012
Staff Note, Civ.R. 65.1; Civ.R. 65.1(F)(3)(b).
{¶7} Under Civ.R. 65.1(F)(3)(c), the magistrate’s grant or denial of a
protection order after a full hearing is not effective until adopted by the court. A trial
court may only adopt a magistrate’s grant or denial of a protection order upon a
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OHIO FIRST DISTRICT COURT OF APPEALS
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). If there is an error of law or defect, the court may
modify or reject the magistrate’s order. Notably, unlike Civ.R. 53, a party may not
object to the magistrate’s grant or denial of a protection order under Civ.R. 65.1.
{¶8} The trial court’s adoption, rejection or modification is effective when
signed by the court and filed with the clerk. Civ.R. 65.1(F)(3)(c). At this point, the
court’s adoption or rejection becomes a final, appealable order. Civ.R. 65.1(G).
{¶9} As an alternative to immediately filing an appeal, Civ.R.
65.1(F)(3)(d)(i) only now allows a party to file objections to the court’s adoption,
modification or rejection of the magistrate’s order. See 2012 Staff Note, Civ.R. 65.1.
The objections will only be sustained if the objecting party shows either “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)(i). The filing
of objections does not stay the magistrate’s grant or denial of a protection order, but
does stay the time for appeal. Civ.R. 65.1(F)(3)(d)(iv).
{¶10} The record demonstrates that the trial court mistakenly followed the
procedure for magistrate’s orders set forth in Civ.R. 53 instead of Civ.R. 65.1. Thus,
despite the fact that the trial court erroneously considered Heekin’s objections to the
magistrate’s grant of the protection order, and had no authority to reset the matter
for a hearing before the court, the trial court, in granting the objections, did reject
the magistrate’s grant of the protection order, which it had the authority to do. The
trial court’s entry rejecting the magistrate’s grant of the protection order was
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OHIO FIRST DISTRICT COURT OF APPEALS
journalized on March 18, 2013. Under Civ.R. 65.1, the trial court’s journalized
rejection of the magistrate’s order was a final appealable order. Civ.R. 65.1(G).
Therefore, Heimann had 30 days from the trial court’s journalized entry to appeal.
App.R. 4(A); State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St. 3d 58,
60, 531 N.E.2d 713 (1988) (time requirement in App.R. 4(A) is jurisdictional and
cannot be enlarged by an appellate court). She did not do so. Her other option
would have been to file objections to the trial court’s rejection of the protection order
within 14 days of the journalization of the entry. She did not do so. While the trial
court’s actions may have unintentionally led Heimann to believe that Civ.R. 53
applied in this case, it did not. Thus, Heimann’s notice of appeal, filed almost five
months after the trial court’s rejection of the magistrate’s grant of the protection
order, was untimely. Consequently, we do not have jurisdiction to entertain
Heimann’s appeal, and it is dismissed.
Appeal dismissed.
CUNNINGHAM, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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