J.S. v. D.E.
2017 Ohio 7507
| Ohio Ct. App. | 2017Background
- Petitioner J.S. filed a civil stalking protection order (CSPO) petition on behalf of D.B., a resident of a medical care facility; an ex parte CSPO issued and a full hearing before a magistrate followed.
- The magistrate granted the CSPO after the full hearing; the trial court adopted the magistrate’s order and filed it January 20, 2017, protecting J.S. and “[D.B.] (as resident of medical care facility).”
- Appellant D.E. was served, appeared at the hearing, then filed a pro se notice of appeal on February 17, 2017.
- D.E. filed a pro se letter on February 14, 2017 stating “I object,” but did not specify grounds, produce a transcript, or otherwise meet Civ.R. 65.1(F)(3)(d) requirements.
- The trial court overruled the objection as untimely (more than 14 days after the court’s filing of the order) and the appellate court found Civ.R. 65.1(G) requires timely objections before pursuing an appeal.
- Because D.E. failed to timely and adequately object and did not provide a transcript, the appellate court dismissed the appeal without reaching the merits concerning whether D.B. qualified as a family/household member.
Issues
| Issue | Plaintiff's Argument (J.S.) | Defendant's Argument (D.E.) | Held |
|---|---|---|---|
| Whether the CSPO properly protected a third party (D.B.) as a "family or household member" | J.S. included D.B. on the petition and the magistrate and trial court adopted the order protecting D.B. | D.E. contends D.B. is not related to or a household member of J.S., so J.S. lacked authority to obtain protection for D.B. | Not reached on the merits; appellate court dismissed appeal for procedural default (failure to timely and adequately object). |
| Whether objections to the trial court’s adoption of a magistrate’s protection order must be filed before appealing | N/A | N/A; procedural argument that objection was insufficient | Court held Civ.R. 65.1(G) requires timely filing of objections under Civ.R. 65.1(F)(3)(d) prior to filing an appeal; failure to do so precludes the appeal. |
| Whether an appellant may rely on appellate plain-error review where objections were not timely | N/A | D.E. did not argue plain error or supply transcript | Court held Civ.R. 65.1 contains no plain-error exception; timely objections are mandatory and stay the appeal clock. |
| Whether a reviewing court can consider factual assertions unsupported by transcript/record | N/A | D.E. made factual claims in briefing/docketing statements without transcript or affidavit | Court reiterated that factual assertions must be supported by transcript or proper substitute; absent transcript, record is presumed valid and appellate review is limited. |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (recognition that omission of necessary transcript portions prevents appellate review and leads to presumption of regularity)
- Felton v. Felton, 79 Ohio St.3d 34 (petition is not evidence at a full hearing; court should not consider petition in determining whether to grant order)