Keller v. Keller
2012 Ohio 4029
Ohio Ct. App.2012Background
- Daughter filed a petition for a civil protection order against Mother on April 12, 2011.
- An ex parte order was issued and a full hearing before a magistrate was set for April 26, 2011.
- At the May 11, 2011 hearing, the magistrate granted a five-year protection order; the trial court adopted it.
- The order used Form 10.01-I but did not indicate it was a magistrate’s decision and did not notify of a 14-day objection period.
- Mother did not file objections to the magistrate’s decision and later appealed on June 7, 2011.
- The appellate court reversed and remanded to cure Civ.R. 53 notice/objection issues before considering merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order is supported by the evidence or against the weight of the evidence. | Keller argues the evidence supports the order. | Keller argues the evidence is insufficient or contrary to weight of the evidence. | Remanded for proper Civ.R. 53 objections; merits not decided. |
Key Cases Cited
- Tabatabai v. Tabatabai, 2009-Ohio-3139 (9th Dist. No. 08CA0049-M (2009)) (discusses Civ.R. 53 notice deficiencies with forms under Sup.R. 10.01(C))
- Ulrich v. Mercedes-Benz USA, L.L.C., 2007-Ohio-5034 (9th Dist. No. 23550 (2007)) (remedial approach when magistrate’s decision lacks Civ.R. 53 notice)
- Larson v. Larson, 2011-Ohio-6013 (3d Dist. No. 13-11-25 (2011)) (remand when Form 10.01-I lacks Civ.R. 53 notices; discusses remedies)
- Calzo v. Lynch, 2012-Ohio-1353 (5th Dist. No. 11CA45 (2012)) (recognizes Form 10.01-I noncompliance but discusses merits when findings exist)
- Swartz v. Swartz, 2011-Ohio-6685 (9th Dist. No. 11CA0057-M (2011)) (forfeiture of issues for failure to timely object absent notice defects)