2018 Ohio 4775
Ohio Ct. App.2018Background
- On June 21, 2017, J.S. filed for a domestic violence civil protection order (CPO) on behalf of herself and two minor children; an ex parte CPO was issued the same day and a full hearing was set for July 6, 2017.
- Appellant D.L. was served with notice on June 24, 2017 but was incarcerated on June 27, 2017 for a ten‑day contempt sentence and did not appear at the July 6 hearing before the magistrate.
- The magistrate conducted the full CPO hearing in D.L.’s absence and, on July 13, 2017, the trial court issued a CPO in favor of J.S. and the minors.
- D.L. filed objections on July 24, 2017, conceding service but arguing he could not attend due to incarceration and asserting the allegations were falsified.
- The trial court overruled D.L.’s objections, noting (1) D.L. had no constitutional right to be present at the civil CPO hearing while incarcerated, (2) D.L. did not move for a continuance or request transport, and (3) D.L. failed to file a transcript of the magistrate’s hearing as required by Civ.R. 65.1(F)(3)(d)(iv), so factual challenges to the magistrate’s findings were barred.
- D.L. appealed; the Eighth District affirmed the trial court’s judgment granting the CPO.
Issues
| Issue | Plaintiff's Argument (J.S.) | Defendant's Argument (D.L.) | Held |
|---|---|---|---|
| Whether respondent had a constitutional right to be present at the full CPO hearing | N/A (requested CPO; hearing may proceed) | D.L. argued he had a due‑process/right to be present and the court erred by holding the hearing without him | Court: No absolute right for an incarcerated respondent to be present at a civil CPO hearing; proceeding in his absence was permissible |
| Whether respondent was denied adequate time to seek a continuance or retain counsel | N/A | D.L. argued he lacked adequate time to seek continuance or obtain counsel because he was jailed after service | Court: D.L. had notice (served June 24) and did not move for a continuance before incarceration; no error in proceeding |
| Whether trial court erred in accepting petitioner’s testimony as credible | J.S. testified at hearing; her testimony supported CPO | D.L. challenged credibility and factual findings | Court: D.L. failed to file the required transcript with his objections under Civ.R.65.1(F)(3)(d)(iv); factual credibility challenges barred; court accepted magistrate’s findings of fact |
Key Cases Cited
- State ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.3d 1220 (Ohio 2015) (appellate review limited to the evidence before the trial court; post‑judgment submission of transcript does not cure failure to provide transcript to trial court)