Losey v. Diersing
2013 Ohio 1108
Ohio Ct. App.2013Background
- Losey filed a civil stalking protection order petition against Diersing in 2010 in Clermont County.
- A June 2010 ex parte hearing led to a temporary order; a full hearing was held July 13, 2010 and a five-year permanent order issued July 15, 2010.
- The order barred Diersing from Entering Losey’s business and required her to stay 500 feet away from Losey and his family.
- In May 2011, a show-cause hearing found Diersing violated the order by entering Losey’s place of business; a contempt penalty was imposed but suspended.
- In February 2012, a second contempt finding was entered after another alleged violation; penalties included jail time and fines.
- Diersing challenged the contempt rulings in objections to the magistrate’s decision; the trial court overruled without an oral hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by denying oral argument on objections | Diersing argues oral argument was required to present her mental health mitigation. | Losey contends Civ.R. 53(D)(4)(d) allows ruling without a hearing if objections are timely. | No error; court properly denied oral argument and ruled on objections. |
| Whether the court lacked jurisdiction due to full hearing after ten days | Diersing contends the full hearing occurred beyond ten days, rendering jurisdiction defective. | Losey argues waiver and no jurisdictional defect from timing; objections on appeal were waived. | Argument waived; no jurisdictional defect found; assignment overruled. |
| Whether the contempt findings were against weight of the evidence or an abuse of discretion | Diersing asserts the contempt findings were improper and not adequately supported. | Losey maintains clear and convincing evidence supported contempt findings. | Contempt findings upheld; supported by record and not an abuse of discretion. |
Key Cases Cited
- Barber v. Barber, 2006-Ohio-4956 (7th Dist. 2006) (reservation of objections not required to be oral argument; Civ.R. 53(D)(4)(d) compliance)
- Ossai-Charles v. Charles, 2011-Ohio-3766 (12th Dist. 2011) (civil contempt standard; clear and convincing evidence; abuse of discretion standard)
- Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (Ohio 1980) (civil contempt standard; clear and convincing evidence required)