Elijah v. Mays

Court: Ohio Court of Appeals
Date filed: 2021-03-19
Citations: 2021 Ohio 866
Copy Citations
1 Citing Case
Combined Opinion
[Cite as Elijah v. Mays, 2021-Ohio-866.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 EBONY ELIJAH                                    :
                                                 :
         Petitioner-Appellant                    :   Appellate Case No. 28863
                                                 :
 v.                                              :   Trial Court Case No. 2020-CV-2641
                                                 :
 MARK MAYS                                       :   (Civil Appeal from
                                                 :   Common Pleas Court)
         Respondent-Appellee                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 19th day of March, 2021.

                                            ...........

EBONY ELIJAH, 4528 Germantown Pike, Dayton, Ohio 45417
    Petitioner-Plaintiff, Pro Se

MARK MAYS, 6060 Germantown Pike, Dayton, Ohio 45417
    Respondent-Defendant, Pro Se

                                           .............

DONOVAN, J.
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       {¶ 1} Ebony Elijah appeals from the trial court’s judgment denying her petition for

a civil protection order after a hearing. Elijah cannot challenge on appeal the trial court's

denial of the protection order, because she failed to file objections in the trial court, as

required by Civ.R. 65.1. Accordingly, the judgment of the trial court is affirmed.

       {¶ 2} Elijah filed her petition on July 9, 2020, and she waived her right to an ex

parte hearing. A magistrate conducted a full hearing on July 22, 2020, but the transcript

of that hearing is not part of our record.1 The magistrate’s decision found that Elijah had

failed to establish that Mark Mays, the respondent, had engaged in two or more incidents

which “would cause [her] to reasonably fear physical harm.”

       {¶ 3} This Court recently discussed an amendment to Civ.R.65.1 as follows:

              “When a magistrate has denied or granted a protection order after a

       full hearing, the court may adopt 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 protection 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, citing Civ.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


1
  Notably, given that Elijah has not fulfilled his duty under App.R. 9(B) to provide
a transcript of the hearing, we must presume the regularity of the trial court proceedings
“unless the limited record before us affirmatively demonstrates error.” State v. White,
2018-Ohio-2573, 115 N.E.3d 878, ¶ 12 (2d Dist), citing Banks v. Regan, 2d Dist.
Montgomery No. 21929, 2008-Ohio-188, ¶ 2, and Knapp v. Edwards Laboratories, 61
Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
                                                                                     -3-


becomes effective when it is signed by the court and 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 order] 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 order prior to filing an appeal. See

Civ.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 appellate

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 contrast, 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
                                                                                           -4-


       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, 158 N.E.3d 1009, ¶ 7-10 (2d Dist.).

       {¶ 4} As this Court noted in Steele v. Steele, 2d Dist. Champaign No. 2020-CA-3,

2021-Ohio-48, ¶ 3:

              Civ.R. 65.1 is clear that magistrate decisions after a full hearing are not

       subject to the requirements in Civ.R. 53(D)(2) or (3). Florenz at ¶ 12, citing Civ.R.

       65.1(F)(3)(b) and Runkle at ¶ 7. Further, a protection order “need not comply with

       Civ.R. 53(D)(3)(a)(iii), which requires a magistrate decision to ‘indicate

       conspicuously that a party shall not assign as error on appeal the court's adoption

       of any factual finding or legal conclusion, * * * unless the party timely and

       specifically objects to that factual finding or legal conclusion as required by Civ.R.

       53(D)(3)(b).’ ” Id.

       {¶ 5} The trial court’s entry adopting the magistrate’s decision provides: “THIS IS

A FINAL APPEALABLE ORDER, AND THERE IS NO JUST REASON FOR DELAY FOR

PURPOSES OF CIV.R. 54 PURSUANT TO APP.R. 4. THE PARTIES SHALL FILE A

NOTICE OF APPEAL WITHIN (30) DAYS.”

       {¶ 6} It is clear that in the absence of objections, Elijah may not assign error in the

trial court’s denial of the petition on appeal. As this Court noted in Steele:

              * * * [W]e * * * express concern about the trial court's language in its

       protection order, which merely provides that the order is final and
                                                                                           -5-


       appealable, and accordingly suggests that objections are not required. We

       caution that a trial court's judgment granting or denying a civil protection

       order should not imply that objections are unnecessary or optional. The

       final sentence of Civ.R. 65.1(G) provides: “a party must timely file objections

       to such an order under division (F)(3)(d) of this rule prior to filing an appeal,

       and the timely filing of such objections shall stay the running of the time for

       appeal until the filing of the court's ruling on the objections.”       We are

       concerned that the court partially advised the parties that the protection

       order was final and appealable, but failed to fully advise them that objections

       are nevertheless required. As we noted in Florenz, the court is obligated

       to provide complete and accurate information.

Id. at ¶ 7.

       {¶ 7} Based upon the foregoing, the order of the trial court is affirmed.

                                      .............



WELBAUM, J. and EPLEY, J., concur.



Copies sent to:

Ebony Elijah
Mark Mays
Hon. Mary Katherine Huffman