Calzo v. Lynch
2012 Ohio 1353
Ohio Ct. App.2012Background
- Romantic relationship 2007–2010; lived with Lynch at Calzo’s home with Calzo’s daughter K.C. (not biological/adopted father).
- Calzo filed March 28, 2011 for a DV Civil Protection Order under R.C. 3113.31; ex parte order granted; full hearing scheduled for April 11, 2011.
- Evidence showed Lynch contacted Calzo post-separation, attended K.C.’s Christmas program, visited Calzo’s babysitter, and proposed marriage at Calzo’s mother’s home.
- Disputed incidents: 2010 bicycle incident (K.C.’s bike run over; intent disputed), November 2010 jack-incident at dinner (threats alleged), December 2010 and March 2011 contact/crisis points.
- Judge granted a five-year Order of Protection on April 19, 2011; Lynch did not file objections and appealed instead.
- Magistrate’s and judge’s signatures on Form 10.01-I involved Civ.R. 53 considerations; appellate review addressed whether Civ.R. 53 applies to magistrate decisions in CPOs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 53 applies to Form 10.01-I CPOs. | Lynch argues Civ.R. 53 requirements not reflected on Form 10.01-I. | Calzo’s Form 10.01-I lacks Civ.R. 53 language; forms approved under Sup.R. 10.01(C) can be adjusted. | Civ.R. 53 applies; order final and appealable despite form; waiver rule excused due to missing Civ.R. 53 notice. |
| Whether the CPO was supported by competent credible evidence. | Lynch contends no pattern of conduct or mental distress established. | Calzo showed repeated post-relationship contact causing distress; pattern evident. | Yes; trial court’s order was supported by competent, credible evidence and not an abuse of discretion. |
| Whether Lynch’s November 26, 2010 statement constitutes a threat of imminent harm under R.C. 3113.31(A)(1)(b). | Calzo argues statement and demeanor created fear of imminent harm. | Lynch argues statement not a threat of imminent physical harm. | CPO upheld; statement and demeanor supported finding of threat of force. |
| Whether the ex parte order was properly granted. | Ex parte grant was appropriate given immediate danger. | Ex parte order subject to later full hearing; arguments insufficient to void. | Ex parte order affirmed; full hearing subsequently upheld the protection order. |
Key Cases Cited
- Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139 (9th Dist. 2009) (Form 10.01-I final, appealable; Civ.R. 53 requirements apply via Sup.R. 10.01(C) standards)
- Larson v. Larson, 2011-Ohio-6013 (3rd Dist. 2011) (Form 10.01-I lacks Civ.R. 53(D) language; magistrate decision may require Civ.R. 53 compliance)
- D.O.Bos v. Dobos, 179 Ohio App.3d 173, 901 N.E.2d 248 (Ohio App. 2008) (Magistrate decision on CPO is final if signed by judge; Civ.R. 53 dictates review)
- Halton v. Crossley, 2012-Ohio-550 (5th Dist. 2012) (Affirmance of protective order within trial court discretion; credibility of witness)
- Yun v. Yun, 2003-Ohio-2644 (5th Dist. 2003) (Final, appealable nature of CPO orders under R.C. 3113.31(G))