Steele v. SteeleSteele v. Steele
Rendered on the 22nd day of January, 2021.
LUCINDA WELLER, Atty. Reg. No. 0070667, 525 Jefferson Avenue, Suite 400, Toledo, Ohio 43604 Attorney fоr Petitioner-Appellee
GREGG LEWIS, Atty. Reg. No. 0041229, 625 City Park Avenue, Columbus, Ohio 43206 Attorney for Respondent-Appellant
DONOVAN, J.
{¶ 2} This Court recently discussed an amendment to
“When a magistrate has denied or granted a protection order after a full hearing, the court may adоpt the magistrate‘s denial or granting of the protection order upon review of the order and a determination that there is no error of law or other defect evident on the face of the order.”
Civ.R. 65.1(F)(3)(c)(ii) . “[T]he magistrate‘s grant or denial of a protectiоn order after a full hearing is not effective until adopted by the court.” Heimann v. Heekin, 1st Dist. Hamilton No. C-130613, 2014-Ohio-4276, ¶ 7, citingCiv.R. 65.1(F)(3)(c) . A trial court‘s adoption, modification, or rejection of a magistrate‘s denial or granting of a protection order after a full hearing becomes effective when it is signed by the court аnd filed with the clerk.Civ.R. 65.1(F)(3)(c)(v) .Pursuant to
Civ.R. 65.1(G) , a trial court‘s decision to adopt a magistrate‘s decision that grants or denies a [civil protection ordеr] is a final, appealable order. However, as of July 1, 2016, the rule requires a party to file timely objections to the trial court‘s оrder prior to filing an appeal. SeeCiv.R. 65.1(G) . Written objections must be filed within 14 days of the filing of the trial court‘s order.Civ.R. 65.1(F)(3)(d)(i) .Since the July 1, 2016 changes to
Civ.R. 65.1(G) , several appеllate districts have held that an appeal must be dismissed if timely objections were not filed. See, e.g., Casto v. Lehr, 5th Dist. Tuscarawas No. 2020 AP 02 0002, 2020-Ohio-3777, ¶ 19; Hetrick v. Lockwood, 6th Dist. Sandusky No. S-17-014, 2018-Ohio-118; J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032, 2017-Ohio-7507; K.R. v. T.B., 10th Dist. Franklin No. 17AP-302, 2017-Ohio-8647; Post v. Leopardi, 11th Dist. Trumbull No. 2019-T-0061, 2020-Ohio-2890.In contrаst, this court has not found the failure to file objections to be jurisdictional. See, e.g., Fecke v. Sizemore, 2d Dist. Montgomery No. 28536, 2020-Ohio-2851 (affirming a protection order due to appellant‘s failure to file objections); Whatley v. Canales, 2d Dist. Montgomery No. 28382, 2020-Ohio-213; Runkle v. Stewart, 2d Dist. Miami No. 2018-CA-27, 2019-Ohio-2356 (noting that the failure to file objections required dismissal, but nonetheless affirming the trial court‘s [protection order] due to failure to file objections); Anderson v. Gregory, 2d Dist. Montgomery No. 28277, 2019-Ohio-2346. See also Danison v. Blinco, 3d Dist. Crawford No. 3-18-19, 2019-Ohio-2767. Nevertheless, a party may not challenge the protection order on appeal if objections were not filed. Id.
Florenz v. Omalley, 2020-Ohio-4487, __ N.E.3d __, ¶ 7-10 (2d Dist.).
{¶ 3}
{¶ 4} The protection order herein, on the final page, stated: “NOTICE OF FINAL APPEALABLE ORDER Copies of this Order, which is a final appealable order, were served on the parties indicated pursuant to
{¶ 5} In Florenz, this Court described the protection order at issue therein as follows:
* * * [T]he [protection order] highlighted portions of
Civ.R. 65.1 . It stated that the magistrate‘s order was not governed byCiv.R. 53(D) , timеly objections did not stay the execution of the order, objections had to conform toCiv.R. 65.1(F)(3)(d) , the trial court‘s adoption of the mаgistrate‘s order was not effective until signed by the court and filed with the clerk, and “[n]otwithstanding the provisions of any other rule, an order entered by this court underCiv.R. 65.1(F)(3)(c) is a final appealable order that can be appealed upon issuance of the order.”In our view, the notification regarding
Civ.R. 65.1 suggestеd that objections were optional and that the order could be appealed immediately without filing objections. Specifically, the inclusion of the language fromCiv.R. 65.1(G) indicating that the order could be immediately appealed was misleading in the absenсe of additional information that timely objections were required prior to filing an appeal. While the magistrate was not requirеd by rule to inform the parties about the need to object, the decision to provide some information aboutCiv.R. 65.1 to the partiеs triggered an obligation to provide complete and accurate information.
{¶ 6} This Court affirmed the trial court’s decision, noting as follows:
Even if we were to consider Omalley‘s arguments in light of the
Civ.R. 65.1 language in the [civil protection order], we would nevertheless find no basis to reverse the order. Omalley failed to provide a transcript of the full hearing before the magistrate, as required byCiv.R. 65.1(F)(3)(d)(iv) . In the absence of a written transcript of the hearing, we have no record of the evidence presented to the magistrate, and we cannot speculate what testimony was given at that hearing. Williams v. Foster, 2d Dist. Montgomery No. 28416, 2019-Ohio-4601, ¶ 10, citing Miller v. Tye, 2d Dist. Montgomery No. 26277, 2015-Ohio-199, ¶ 90. Rather, we must presume that the evidence supported the magistrаte‘s findings. See Kahler v. Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 34.
{¶ 7} It is clear that, in the absence of objections, Mr. Steele may not challenge the trial court’s decision on aрpeal. However, we again express concern about the trial court’s language in its protection order, which merely рrovides that the order is final and
{¶ 8} Finally, we note that pursuant to
* * * The moving party has the burden of proof to show, by a preponderance of the evidence, that modification or termination of thе protection order or consent agreement is appropriate because either the protection order or consent agreement is no longer needed or because the terms of the original protection order or consent agreement are no longer appropriate.
“When ruling on a motion to terminate a [civil protection order], a trial court must consider ‘all relevant factors,’ including the factors identified in
{¶ 9} The order of the trial court is affirmed.
Copies sent to:
Lucinda Weller
Gregg Lewis
Hon. Brett A. Gilbert