Boggs v. Calaway

2021 Ohio 2528

• Court: Ohio Court of Appeals
• Decided: July 23, 2021
• Docket: 2020-CA-38
• Status: Published

Opinion

[Cite as Boggs v. Calaway, 2021-Ohio-2528.]

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

BRITTANI BOGGS : : Plaintiff-Appellee : Appellate Case No. 2020-CA-38 : v. : Trial Court Case No. 2020-DR-195 : FRANCISCO CALAWAY : (Domestic Relations Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 23rd day of July, 2021.

LISON BOGGS, Atty. Reg. No. 0055841, P.O. Box 53, Marysville, Ohio 43040 Attorney for Plaintiff-Appellee

MARC S. TRIPLETT, Atty. Reg. No. 0021222 & TINA M. MCFALL, Atty. Reg. No. 0082586, 332 South Main Street, Bellefontaine, Ohio 43311 Attorneys for Defendant-Appellant

............. -2-

DONOVAN, J.

{¶ 1} Francisco Calaway appeals from the trial court's order granting a petition for

a domestic violence civil protection order filed by Brittani Boggs, the mother of Calaway’s

minor child. Calaway cannot challenge on appeal the trial court's grant of the order

because he failed to file objections in the trial court, as required by Civ.R. 65.1. As such,

the judgment of the trial court is affirmed.

{¶ 2} In Florenz v. Omalley, 2020-Ohio-4487, 158 N.E.3d 1009, ¶ 7-10 (2d Dist.),

we stated:

“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

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 -3-

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

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.

Id. at ¶ 7-10. See also Steele v. Steele, 2d Dist. Champaign No. 2020-CA-3, 2021-Ohio-

148, ¶ 2. -4-

{¶ 3} This Court further noted:

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.

Steele at ¶ 3.

{¶ 4} In the absence of objections, Calaway may not challenge the trial court's

decision to grant a protection order on appeal. Finally, as this Court noted in Steele:

* * * [W]e again express concern about the trial court’s language in

its protection order, which merely provides that the order is final and

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.” * * *

Finally, we note that pursuant to R.C. 3113.31, either party may

move to modify or terminate a civil protection order. R.C. 3113.31(E)(8)(b) -5-

provides:

* * * The moving party has the burden of proof to show, by a

preponderance of the evidence, that modification or termination of

the 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

R.C. 3113.31(E)(8)(c).” Brown v. Naff, 2d Dist. Miami No. 2011-CA-17,

2012-Ohio-1770, ¶ 10.

Steele at ¶ 7-8.

{¶ 5} The judgment of the trial court is affirmed.

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

Copies sent to:

Alison Boggs Marc S. Triplett Tina M. McFall Hon. Lori L. Reisinger