Larson v. Larson
2011 Ohio 6013
Ohio Ct. App.2011Background
- Scott filed a civil protection order petition against Diana under R.C. 3113.31 on July 26, 2011.
- An ex parte order (Form 10.01-H) was issued the same day and signed by the judge.
- A full hearing was scheduled; Diana moved for a continuance and the hearing was rescheduled to August 5, 2011, with another hearing on August 16, 2011.
- On August 16, 2011, the magistrate granted the CPO using Form 10.01-I and the judge adopted it the same day.
- The order was filed August 17, 2011, stating it was a final, appealable order.
- Diana timely requested findings of fact and conclusions of law under Civ.R. 53(D)(3)(a)(ii) on August 22, 2011; the magistrate denied August 24, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Civ.R. 53 compliance of the magistrate’s decision | Diana argues Form 10.01-I lacks proper Civ.R. 53 language. | Larson contends Form 10.01-I satisfies Sup.R. 10.01(C). | Civ.R. 53 not satisfied; remand to amend findings. |
| Findings of fact and conclusions of law | Diana timely requested findings of fact and conclusions of law. | Larson asserts no error in not providing them. | Failure to issue timely findings constitutes reversible error; remand. |
Key Cases Cited
- Tabatabai v. Tabatabai, 2009-Ohio-3139 (9th Dist. 2009) (Sup.R. 10.01(C) permits modification to be Civ.R. 53 compliant)
- State v. Gettys, 49 Ohio App.2d 241 (Ohio App. 1976) (superintendence rules not equivalent to statutes)
- Krupansky v. Pascual, 27 Ohio App.3d 90 (Ohio App. 1985) (superintendence rules limited by other governing rules)
- Clark, 2005-Ohio-6741 (Ohio App. 2005) (Civ.R. 52 obligation to issue findings when timely requested; applied by Civ.R. 53 context)