Jones v. FowlerJones v. Fowler
Donald J. Malarcik, 54 East Mill Street, Suite 400, Akron, Ohio 44308 and Seneca Konturas, 125 South Water Street, Suite 3/4, Kent, Ohio 44240 (For Respondent-Appellant).
O P I N I O N
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Kevin M. Fowler, appeals the trial court‘s order dеnying his motion for relief from judgment. We affirm.
{¶2} Ronald Jones, Jr. was granted a temporary ex parte civil stalking protection order on June 8, 2018, against Fowler. Following a full hearing before the magistrate, Jones wаs granted a five-year civil stalking protective order (CSPO) ordering Fowler, in part, to stay 1,000 feet away from Jones, Jones’ fiancé, and her three children. The trial
{¶3} On June 15, 2018, Fowler filed a notice of intention to file objections to the magistrate‘s decision and a notice that the hearing transcript had been ordered. He did not thereafter file any objections, nor did he seek an extension of time to do so.
{¶4} Thereafter, Fowler filed a motion for relief frоm the trial court‘s June 13, 2018 decision. The trial court overruled his motion finding that Fowler failed to establish that he was entitled to
{¶5} Fowler‘s first assigned error alleges:
{¶6} “[1.] The trial court erred in summarily denying appellant‘s motion to vacate order of June 13, 2018, where appellant had timely filed a notice of intent to file objection to magistrate decision and took neсessary steps to review the transcript of proceedings prior to submitting an argument against the manifest weight of the evidence in the form of a motion to vacate. (T.d. ¶1-2.).”
{¶7} Fowler challenges the trial court‘s finding that he failed to file written objections and argues that the CSPO is based on insufficient evidence and is against the manifest weight of the evidence. His arguments in this assignment are based on the incorrect prеmises that a notice of intent to file objections preserves a litigant‘s time to file written objections and that objections can be raised in a motion for relief from judgment.
{¶8} A magistrate‘s judgment following a full hearing on a CSPO does not constitute a magistrate‘s decision or order subject to the requirements of
{¶9} “(d) Objections.
{¶10} “* * *
{¶11} “(iii) A party filing objections under this division has the burden of showing that an error of law or other defect is evident on the face of the order, or that the credible evidence of record is insufficient to support the granting or denial of the protection order, or that the magistrate abused the magistrate‘s discretion in including or failing to include specific terms in the protection order.
{¶12} “(iv) Objections based upon evidence of record shall be supported by a transcript of all the evidence submitted to the magistrate or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or mannеr of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for prepаration of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to suрplement the objections.”
{¶13} Moreover,
{¶14} Although a party may file objections to the magistrate‘s judgment via
{¶15} As stated, the trial court here adopted the magistrate‘s judgment the same dаy it was issued, June 13, 2018. And although Fowler filed a notice of intent to file objections to the magistrate‘s judgment, he never filed objections. Fowler also never sought an extension of time to do so. A notice of intent to file objections is not the same as filing objections, and a notice of intent to object does not stay the time for appealing nor does it give a party additional time to object. Additional time may be obtained by leave of court, but Fowler did not request additional time.
{¶16} Furthermore, applying
{¶17} Because the points raised under this argument could have been raised as objections, the trial court correctly found that it could not address Fowler‘s arguments in his motion for relief from judgment.
{¶18} Fowler‘s second assigned error asserts:
{¶19} “[2.] The trial court erred when it denied appellant‘s motion for relief from judgment per Civil Rule 60(B) and the opportunity to present previously unavailable / newly discovered evidence.”
{¶20} Appellate courts review decisions denying motions for relief from judgment for an abuse of discretion. PNH v. Alfa Laval, Inc., 189 Ohio App.3d 704, 2010-Ohio-3280, 940 N.E.2d 577, ¶61.
{¶21} “‘[T]he term “abuse of discretion” is one of art, connoting judgment exercised by a court, which does not comport with reason or the recоrd.’ State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). * * * When an appellate court is reviewing a pure issue of law, ‘the mere fact that the reviewing court would decide the issue differently is enough to find error (of course, not all errors are rеversible. Some are harmless; others are not preserved for appellate review). By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error.’ [State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,] ¶ 67.” Ivancic v. Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶70.
{¶22} “To prevail on his motion under
{¶23} Fowler‘s August 30, 2018, motion for relief from the trial court‘s June 13, 2018 decision argues three bases for relief under
{¶24} Here, Fowlеr‘s motion was made in a reasonable time, less than two months after the CSPO, and he raises a meritorious defense, i.e., that the CSPO was improperly granted. For the following reasons, however, Fowler fails to еstablish he is entitled to relief under one of the grounds in
{¶25} As for Fowler‘s first ground for relief, i.e., that Jones and his two witnesses lied in their testimony before the magistrate, Fowler presents nothing in support of this contention. The movant bears the burden of proof to come forward with sufficient factual information to warrant a hearing on a motion for relief from judgment. Adomeit v. Baltimore, 39 Ohio App.2d 97, 103-104, 316 N.E.2d 469 (8th Dist.1974). And when the movant fails to set forth any operative facts to assist the trial court in determining whether the alleged grounds for relief exist, a court does not abuse its discretion in denying the motion for relief from judgment. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 564 (1988) syllabus. Thus, Fowler‘s unsupported allegation does not warrant relief from the CSPO.
{¶26} Fowler‘s second stated ground for relief claims the magistrate committed a “mistake of fact” in interpreting the video presented at the hearing. However, “the mistake contemplated by
{¶27} Thus, because Fowler does not aver a mistake of fact consistent with that contemplated by
{¶28} Moreover, because Fowler‘s argument could have been raised by way of objection,
{¶29} Thus, his second basis for relief lacks merit.
{¶30} Fowler‘s final alleged ground for relief claims he is entitled to relief, or that a hearing should be held, to allow his grandsons to testify because they were unavailable to testify at the hearing because they were subject to the initial, temporary ex parte protective order. And because the boys were subjeсt to the order, Fowler claims he was precluded from calling them as witnesses at the hearing. We disagree.
{¶31}
{¶32} Here, Fowler‘s grandsons were subject to the initial, ex parte civil protection order, but Fowler never moved the court for permission to have them testify. He likewise did not orally request the court to allow them to testify at the hearing. Further, three other individuals subject to the same ex parte protective order, i.e., Jones, his fiancé, and her daughter, were present and testified at the hearing.
{¶33} Thus, Fowler fails to come forward with operative facts showing he had newly discovered evidence since the hearing consistent with
{¶34} Notwithstanding, nothing herein precludes a motion to modify or terminate the order. T.D. v. C.N., 8th Dist. Cuyahoga No. 105994, 2018-Ohio-1840, 113 N.E.3d 123, ¶41, appeal not allowed, 153 Ohio St.3d 1475, 2018-Ohio-3637, 106 N.E.3d 1260; Prostejovsky v. Prostejovsky, 5th Dist. Ashland No. 06-COA-033, 2007-Ohio-5743, ¶23-24 (modification or termination of a CSPO is permitted when the movant shows the original circumstances have materially changed and the order is no longer equitable).
{¶35} The trial court‘s decision is affirmed.
TIMOTHY P. CANNON, J.,
MATT LYNCH, J.,
concur.