N.S. v. E.J.

Ohio Court of Appeals October 21, 2020

N.S. v. E.J., 2020 Ohio 4971 (2020)

Schafer

Opinion

[Cite as N.S. v. E.J.,

2020-Ohio-4971

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

N. S. C.A. No. 29657

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE E. J. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2019-05-1917

DECISION AND JOURNAL ENTRY

Dated: October 21, 2020

SCHAFER, Judge.

{¶1} Petitioner-Appellant, N.S., appeals the judgment entry of the Summit County

Court of Common Pleas adopting the magistrate’s decision denying the protection order.

For the reasons that follow, this Court affirms.

{¶2} On May 24, 2019, N.S. filed a petition for a civil stalking protection order

(“CSPO”) pursuant to R.C. 2903.214. N.S. sought an order of protection from Respondent-

Appellee, E.J. The trial court denied N.S.’s request for an ex parte protection order that

day and set the matter for a full hearing.

{¶3} The full hearing was held over two days on July 11 and 22, 2019. N.S.

appeared at the hearing represented by counsel. E.J. appeared along with a woman, A.E.,

who was N.S.’s coworker and also the girlfriend of E.J. A.E. appears to be named as 2

respondent in another petition for a CSPO filed by N.S. in a separate case. Both E.J. and

A.E. were represented by counsel at the hearing.1 The magistrate indicated that another

individual who witnessed one of the interactions N.S. cited as a basis for her petition also

appeared at the hearing. At the conclusion of the hearing, the magistrate took the matter

under advisement and granted N.S.’s request to submit a post-hearing brief in support of

her position.

{¶4} The magistrate issued a decision on October 18, 2019, concluding that N.S.

“did not establish by a preponderance of the evidence that [E.J. and A.E.] have engaged in

conduct that has caused [N.S.] to believe that [E.J. or A.E.] would cause her physical harm

or mental distress.” The magistrate declined to issue a protection order and ordered the

case dismissed with prejudice pursuant to Civ.R. 41(B)(1). The trial court approved and

adopted the magistrate’s denial of the protection order.

{¶5} On November 1, 2019, N.S. filed an objection to the order denying the

protection order and indicated that she would need thirty days to file a transcript of the

hearing. N.S. did not file the transcript of the hearing. On December 30, 2019, the trial

court issued an order sustaining N.S.’s objection to the Civ.R. 41(B)(1) dismissal, but

overruling N.S.’s remaining objections.

{¶6} N.S. timely appealed the trial court’s order and raised two assignments of

error for our review. E.J. did not file a merit brief in this matter. Thus, we may accept

1 The separate cases against E.J. and A.E. were not consolidated, but the magistrate addressed both petitions at the hearing and in her decision. N.S. only appealed the denial of her petition against E.J. Therefore, the denial of her petition against A.E. is not subject to the present appeal. 3

N.S.’s statement of the facts and issues as correct and reverse the judgment if her merit

brief reasonably appears to sustain such action. App.R. 18(C). To facilitate our review,

we consolidate her assignments of error.

II.

Assignment of Error I

The trial court erred by requiring [N.S.] to prove a threat of or a fear of physical harm and mental distress to obtain a [CSPO] under R.C. 2903.211(A). * * *.

Assignment of Error II

The trial court erred by ruling that unauthorized withdrawals from [N.S.]’s bank account are not the type of criminal conduct that the elements of menacing by stalking statute, R.C. 2903.211(A), was enacted to cover.

{¶7} In her assignments of error, N.S. contends that the magistrate erred as a

matter of law by allegedly requiring her to prove both a threat of or a fear of physical harm

and mental distress, and by concluding N.S.’s allegations that E.J. made unauthorized

withdrawals from N.S.’s bank account would not constitute the type of conduct

contemplated by R.C. 2903.211.

{¶8} Following the full hearing, the magistrate issued a decision finding that E.J.

may have engaged in a pattern of conduct wherein he threatened legal action against N.S.,

but he did not make a threat of physical harm. The magistrate further found that even if,

as N.S. alleged, E.J. and A.E. made unauthorized charges on N.S.’s debit card, that conduct

would not satisfy the elements of menacing by stalking under R.C. 2903.211. The

magistrate considered N.S.’s testimony about her emotional distress and fear, but found 4

that N.S. “waivered” in her testimony and found that her “allegation that she is afraid of

[E.J. and A.E.] because of their criminal behavior[, the alleged theft,] was not convincing

for purposes of establishing [E.J. and A.E.] engaged in conduct that constitutes menacing

by stalking.” The magistrate concluded that N.S. failed to establish by a preponderance of

the evidence that E.J. engaged in conduct that caused her to believe he would cause her

physical harm or mental distress, denied N.S.’s petition for a CSPO, and ordered the case

dismissed with prejudice pursuant to Civ.R. 41(B)(1). The trial court approved and

adopted the order denying the protection order.

{¶9} N.S. filed an objection to the order denying the protection order on

November 1, 2019, and requested thirty days to file a transcript of the hearing. In her brief

in support of her objection, N.S. first objected on the grounds that the magistrate erred by

dismissing her case for failure to prosecute pursuant to Civ.R. 41(B)(1). Second, N.S.

objected on the grounds that the magistrate’s determination that she did not meet her

burden is not supported by the evidence of record and is an error of law evident on the face

of the order. N.S. raised four arguments in support of this objection: (1) “The magistrate’s

decision relied upon an incomplete definition for ‘pattern of conduct[,]’” (2) “The credible

evidence of record is insufficient to support the magistrate’s finding that [N.S.] did not

sufficiently establish a pattern of conduct pursuant to R.C. 2903.211[,]” (3) “The credible

evidence of record is insufficient to support the magistrate’s finding that petitioner did not

sufficiently establish mental distress[,]” and (4) “[N.S.] demonstrated that [E.J.] acted

knowingly[.]” 5

{¶10} On December 30, 2019, the trial court issued an order ruling on N.S.’s

objections. Initially we note that the trial court cited to the Civ.R. 53 standard in ruling on

the objections. However, a petition for a CSPO pursuant to R.C. 2903.211 is a special

statutory proceeding governed by Civ.R. 65.1, Civ.R. 65.1(A), and a court may refer such

proceedings to a magistrate for a full hearing and determination, Civ.R. 65.1(F)(3). When

the proceedings are referred to the magistrate to conduct the full hearing, the magistrate,

upon conclusion of the hearing, shall deny or grant a protection order. Civ.R. 65.1(F)(3)(a).

A magistrate’s denial or granting of a protection order after full hearing under Civ.R. 65.1

does not constitute a magistrate’s order or a magistrate’s decision under Civ.R. 53(D)(2)

or (3), and is not subject to the requirements of those rules. Civ.R. 65.1(F)(3)(b).

{¶11} Nonetheless, the trial court’s review was sufficient to comply with the Civ.R.

65.1 standard and N.S. has not argued otherwise. See T.M. v. R.H., 9th Dist. Summit No.

29556,

2020-Ohio-3013, ¶ 9

(“[D]espite the trial court’s citation to Civ.R. 53, the court

applied the appropriate standard under Civ.R. 65.1.”). Civ.R.65.1(F)(3)(d) specifies the

procedures for a party to file objections to a trial “court’s adoption, modification, or

rejection of a magistrate’s denial or granting of a protection order after a full hearing[.]”

A party may file written objections within fourteen days of the trial court’s filing of the

order denying the protection order. Civ.R.65.1(F)(3)(d)(i). A party filing objections “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 * * * 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.” Civ.R.65.1(F)(3)(d)(iii). 6

{¶12} Of particular significance here is the requirement that 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.”

Civ.R.65.1(F)(3)(d)(iv). “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 preparation of the transcript or other good cause.”

Id.

Further, if the objections are

timely filed, “prior to the date on which a transcript is prepared, the party may seek leave

of court to supplement the objections.”

Id.

“[A] party must timely file objections to [an

order adopting a magistrate’s denial of a protection] order under [this rule] prior to filing

an appeal[.]” Civ. R. 65.1(G).

{¶13} Upon consideration of N.S.’s objections, the trial court found that N.S. failed

to file the necessary transcripts within the prescribed thirty days and noted that she had not

requested an extension of time to do so. On that basis, the trial court overruled N.S.’s

evidentiary-based objections. Regarding N.S.’s arguments alleging an error of law, the

trial court sustained N.S.’s objection that her petition was improperly dismissed pursuant

to Civ.R. 41(B)(1). However, the trial court concluded that there were no other errors of

law in the order. Accordingly, the trial court reaffirmed its adoption of the magistrate’s

findings of fact and conclusions of law and denial of the CSPO, and dismissed the matter

with prejudice.

{¶14} On appeal, N.S. argues that the order denying her petition for a CSPO

contains two errors of law and asks this Court to conduct a de novo review of the matter 7

and reverse the decision of the trial court. However, N.S. did not raise these arguments in

her objections to the trial court below.

{¶15} As noted above, “a party must timely file objections to [an order adopting a

magistrate’s denial of a protection] order under [this rule] prior to filing an appeal[.]” Civ.

R. 65.1(G). In addition to timely asserting her objections, N.S. had “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 * * * 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.” Civ.R.65.1(F)(3)(d)(iii). Although N.S. did file

timely objections, she failed to object on either of the bases she has raised in these two

assignments of error. Consequently, the trial court never had the opportunity to consider

whether N.S. met her burden under Civ.R.65.1(F)(3)(d)(iii) to show the errors of law she

now attempts to argue for the first time on appeal.

{¶16} Because N.S. failed to raise in the court below the issues she now attempts

to assign as error on appeal, we cannot reach the merits of her arguments. See R.S. v. J.W.,

9th Dist. Summit No. 28970,

2018-Ohio-5316, ¶ 17

(declining to address on appeal

arguments appellant failed to raise as objections to the magistrate’s decision), citing J.Y. v.

J.Y., 9th Dist. Medina No. 17CA0037-M,

2018-Ohio-3522, ¶ 5

. Therefore, both of N.S.’s

assignments of error are overruled.

III.

{¶17} N.S.’s first and second assignments of error are overruled. The judgment of

the Summit County Court of Common Pleas is affirmed. 8

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR.

APPEARANCES:

SUSAN M. FITCH, Attorney at Law, for Appellant.

MATTHEW TALLEY, Attorney at Law, for Appellee.