2023 Ohio 764
Ohio Ct. App.2023Background
- Petitioner-appellee Christy Moyer (with her two minor children) sought a civil stalking protection order (CSPO) under R.C. 2903.214 after repeated texts/calls and an alleged November 2021 sighting of respondent-appellant Jason Robinson at her residence.
- A magistrate granted an ex parte CSPO, held a full hearing (both parties testified), then found Moyer credible, Robinson not credible, and granted a CSPO effective through March 1, 2025; the trial court adopted the magistrate’s decision.
- Robinson filed written objections but did not file a transcript of the magistrate hearing or an affidavit of the evidence as required by Civ.R. 65.1(F)(3)(d)(iv).
- Robinson later obtained and filed the transcript with the record on appeal but did not supplement his objections in the trial court; the trial court overruled his objections and Robinson appealed.
- Robinson raised eight assignments of error alleging (inter alia) the magistrate failed to disclose an extended leave denying his right to object, led the petitioner’s testimony, and made erroneous factual findings; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether magistrate’s failure to disclose an extended medical leave deprived Robinson of the right to object to proceeding | Moyer: hearing and process were proper; magistrate’s leave timing did not affect order | Robinson: magistrate didn’t disclose leave and would delay issuing recommendations, so he was prejudiced and would have objected | Court: Robinson failed to cite authority or show prejudice; assignment without merit |
| Whether magistrate improperly led Moyer’s testimony | Moyer: testimony admissible and supported protection order | Robinson: magistrate’s leading questions elicited answers she might not have given | Court: Robinson did not raise this in objections nor claim plain error; transcript not before trial court so appellate court cannot consider it; assignment without merit |
| Whether magistrate’s factual findings (including Moyer’s sighting and Robinson’s whereabouts) were erroneous | Moyer: findings supported by hearing testimony | Robinson: factual findings wrong; evidence shows he was in Columbus; Moyer lied; court overlooked other evidence | Court: Robinson failed to file required transcript/affidavit with his objections; therefore he cannot challenge factual findings on appeal; assignments barred |
| Whether failure to provide transcript with objections bars appellate review | Moyer: procedural rules satisfied; trial court properly reviewed record before it | Robinson: later filing of transcript with appeal should allow review | Court: Civ.R. 65.1(F)(3)(d)(iv) required transcript/affidavit with objections; later-submitted transcript cannot be considered by trial or appellate court when not part of trial-court review; procedural default bars review |
Key Cases Cited
- State ex rel. Fulton v. Halliday, 53 N.E.2d 521 (Ohio 1944) (appellant must affirmatively demonstrate error on appeal)
- State v. Ishmail, 377 N.E.2d 500 (Ohio 1978) (reviewing court cannot add matter to the record that was not part of trial-court proceedings)
- J.S. v. D.L., 125 N.E.3d 216 (Ohio App. 2018) (transcript requirement: appellate review limited to evidence before trial court; transcript filed only on appeal may not be considered)