Danison v. Blinco

[Cite as Danison v. Blinco, 2019-Ohio-2767.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
CARL J. DANISON,
PLAINTIFF-APPELLEE, CASE NO. 3-18-19
v.
MATTHEW BLINCO, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 18CV0226
Judgment Affirmed
Date of Decision: July 8, 2019
APPEARANCES:
Robert C. Aldridge for Appellant
G. Scott McBride for Appellee
Case No. 3-18-19
PRESTON, J.
{¶1} Respondent-appellant, Matthew Blinco (“Blinco”), appeals the
November 14, 2018 judgment of the Crawford County Court of Common Pleas
granting a civil stalking protection order (“CSPO”) to petitioner-appellee, Carl J.
Danison (“Danison”) on behalf of his minor child, R.D. For the reasons that follow,
we affirm.
{¶2} On September 25, 2018, Danison filed a petition for an ex parte CSPO
under R.C. 2903.214. (Doc. No. 1). The trial court granted Danison’s ex parte
petition on September 26, 2018. (Doc. No. 3). Both parties appeared with counsel
at the full hearing on November 6, 2018. (Doc. No. 10). On November 14, 2018,
the magistrate granted a three-year CSPO against Blinco. (Id.). The order was
adopted by the trial court on the same day. (Id.). Blinco did not file objections to
the trial court’s adoption of the magistrate’s decision granting the CSPO.
{¶3} On December 6, 2018, Blinco filed a notice of appeal. (Doc. No. 11).
He raises three assignments of error.
Assignment of Error No. I
The trial court erred in considering hearsay evidence in granting
Petitioner’s Petition for a Civil Stalking Protection Order.
Assignment of Error No. II
The trial court erred in granting Petitioner’s Petition for a Civil
Stalking Order because the evidence offered did not meet the
requirements of Ohio Revised Code Section 2903.214.
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Case No. 3-18-19
Assignment of Error No. III
The trial court erred in failing to make any findings of fact to
support its decision to issue the Civil Stalking Protection Order.
{¶4} In his assignments of error, Blinco argues that the trial court erred by
granting Danison’s petition for a CSPO. Specifically, Blinco argues that the trial
court considered inadmissible hearsay statements when granting Danison’s petition
for a CSPO. (Appellant’s Brief at 6-7). Blinco also asserts that Danison failed to
present sufficient evidence to demonstrate that Blinco engaged in a “pattern of
conduct” which “knowingly” caused R.D. to believe he would cause “physical
harm” or “mental distress” to her. (Id. at 7-10). (See R.C. 2903.211(A)(1); R.C.
2903.214). Blinco also contends that the trial court did not make any findings of
fact in support of its decision to grant Danison’s petition for a CSPO. (Appellant’s
Brief at 11).
{¶5} Notwithstanding Blinco’s arguments, we must first determine whether
this court has jurisdiction to reach the merits of Blinco’s assigned errors.
{¶6} Danison argues that Blinco’s failure to file objections to the trial court’s
adoption of the magistrate’s decision granting Danison’s petition for a CSPO in
accordance with Civ.R. 65.1(G) divests this court of jurisdiction to entertain
Blinco’s appeal as it is not a final, appealable order.
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Case No. 3-18-19
{¶7} Civ.R. 65.1 governs proceedings under R.C. 2903.214. Civ.R. 65.1(A).
Under Civ.R. 65.1(F)(3)(d)(i), “[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(G) provides as follows:
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.
The plain language of Civ.R. 65.1(G) specifically defines an order entered under
Civ.R. 65.1(F)(3)(c) as a final, appealable order. M.W. v. D.M., 8th Dist. Cuyahoga
No. 105758, 2018-Ohio-392, ¶ 7. Thus, this court has jurisdiction over Blinco’s
appeal. See id. (noting that “[t]he failure to comply with Civ.R. 65.1(G) * * * is not
jurisdictional”); Saqr v. Naji, 1st Dist. Hamilton No. C-160850, 2017-Ohio-8142, ¶
19. But see K.R. v. T.B., 10th Dist. Franklin No. 17AP-302, 2017-Ohio-8647, ¶ 6
(dismissing the appeal pursuant to Civ.R. 65.1(G) due to the appellant’s failure to
file objections to the trial court’s adoption of the magistrate’s decision granting the
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Case No. 3-18-19
CSPO); J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032, 2017-Ohio-7507, ¶ 21-
22 (dismissing the Respondent’s appeal and finding that under Civ.R. 65.1(G),
“[w]ithout a timely-filed objection, Appellant is not permitted to appeal the trial
court’s adoption of the magistrate’s granting of the protection order”); K.U. v. M.S.,
7th Dist. Mahoning No. 16 MA 0165, 2017-Ohio-8029, ¶ 18 (“Without any
objection filed, pursuant to Civ.R. 65.1(G), this Court lacks jurisdiction to hear this
appeal.”).
{¶8} However, we also acknowledge that the requirement to file written
objections to the trial court’s adoption of the magistrate’s decision is mandatory.
Civ.R. 65.1(G); M.W. at ¶ 7. See Civ.R. 65.1(F)(3)(d). Therefore, parties wishing
to object to the trial court’s adoption of the magistrate’s decision must timely file
objections with the trial court as failure to do so waives their arguments regarding
the trial court’s adoption of the magistrate’s decision. See J.Y. v. J.Y., 9th Dist.
Medina No. 17CA0037-M, 2018-Ohio-3522, ¶ 5 (noting that “the fact that the * *
* civil protection order indicated that it was a final appealable order did not excuse
[Respondent] from complying with the procedural requirements of Civ.R. 65.1” and
declining to address the merits of the assignment of error). Here, Blinco failed to
timely file an objection to the trial court’s adoption of the magistrate’s decision.
{¶9} Thus, Blinco did not preserve his arguments for appeal.1
1
The trial court in the case at hand used Sup.R. Form 10.03-F for its judgment entry. (See Doc. No. 10).
The form used by the trial court is the most recent version currently available and was amended on March 1,
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Case No. 3-18-19
{¶10} Accordingly, we decline to address the merits of Blinco’s assignments
of error. Blinco’s assignments of error are overruled.
{¶11} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
2014. See Sup.R. Form 10.03-F. We note, with concern, that Sup.R. Form 10.03-F does not include a
conspicuous warning of the consequences of failure to object to an order entered under Civ.R. 65.1(F)(3)(c)
or Civ.R. 65.1(F)(3)(e) within fourteen days. We acknowledge that Civ.R. 65.1(F)(3)(b) expressly states that
“[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.” Thus, Civ.R. 53(D)(3)(a)(iii), which provides that “[a] magistrate’s decision
shall 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,” does not apply to the case at hand, which was an order entered under Civ.R. 65.1(F)(3)(c).
While we will follow Civ.R. 65.1(F)(3)(b), we nevertheless find it troublingly inconsistent that the trial court
is required to give the parties a conspicuous warning of the consequences of failure to object to orders entered
under Civ.R. 53(D)(2) or (3), but not under Civ.R. 65.1(F)(3)(c) or Civ.R. 65.1(F)(3)(e), particularly due to
the weighty consequences to the parties, who often proceed pro se, of a decision issued under Civ.R.
65.1(F)(3)(c) or Civ.R. 65.1(F)(3)(e).
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