[Cite as K.T. v. J.S., 2021-Ohio-4350.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
K. T. C.A. No. 21AP0004
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE J. S. COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 2020 CVC-C 000278
DECISION AND JOURNAL ENTRY
Dated: December 13, 2021
SUTTON, Judge.
{¶1} Appellant-Respondent J.S. appeals from the judgment of the Wayne County Court
of Common Pleas. This Court reverses and remands for further consideration.
I.
{¶2} On August 27, 2020, Appellee-Petitioner K.T. filed a petition for a civil stalking
protection order against her neighbor, J.S., pursuant to R.C. 2903.214. Under this petition, K.T.
sought protection for both herself and her three children. The trial court granted K.T.’s request
for an ex parte protection order and set the matter for a full hearing.
{¶3} After two continuances were granted at J.S.’s request, a full hearing on K.T.’s
petition was held on November 13, 2020, before a magistrate. Both parties appeared and were
represented by counsel. The magistrate issued a decision on November 18, 2020, concluding
that as a result of the testimony and evidence presented at the full hearing, “the preponderance of
the evidence mandates a civil stalking protection [order] to ensure the safety and protection of 2
[K.T.] and her minor children.” The trial court reviewed and adopted the magistrate’s decision
the same day.
{¶4} On November 24, 2020, J.S. timely filed an objection to the magistrate’s decision
and the trial court’s adoption of the same. In his objection, J.S. did not state any factual or legal
basis for objecting, but instead indicated that “[u]pon completion of the requested transcript of
November 13, 2020 * * *, counsel for [J.S.] will file a more specific objection.” The following
day, the trial court issued an order requiring J.S. to submit a deposit to the court reporter for
preparation of the transcript of the November 13, 2020 hearing. In that order, the trial court also
informed J.S. that after the filing of the transcript, he would have ten days to submit a
memorandum in support of his objection. The order also indicated that K.T. would have ten
days to respond to J.S.’s objection, and then the court would rule on J.S.’s objection without a
hearing.
{¶5} On December 14, 2020, a copy of the transcript of the November 13, 2020
hearing was filed with the trial court. Eight days later, on December 22, 2020, the trial court
overruled J.S.’s objection on the basis that J.S. failed to make any specific objection pursuant to
Civ.R. 53. In so doing, the trial court stated “[t]he lack of a transcript does not prevent counsel
from filing a specific objection which is required by the rule. Because the objection is not
specific, the objection is overruled.” The trial court did not address why it ruled on J.S.’s
objection two days prematurely.
{¶6} J.S. timely appealed asserting four assignments of error for review. This Court
elects to begin with the third assignment of error as it is dispositive of this appeal. 3
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, ABUSING ITS DISCRETION WHEN IT UPHELD THE MAGISTRATE’S DECISION AND DISMISSED [J.S.]’S OBJECTION WITHOUT ALLOWING HIM TO SUPPLEMENT WITH THE TRANSCRIPT, WITHOUT HAVING REVIEWED THE TRANSCRIPT, AND NOT CONDUCTING AN INDEPENDENT REVIEW OF THE RECORD.
{¶7} In his third assignment of error, J.S. argues that the trial court erred in overruling
his objection. For the following reasons, we agree.
The trial court applied the incorrect standard in denying J.S.’s objection.
{¶8} Civ.R. 65.1 of the Ohio Rules of Civil Procedure applies to “special statutory
proceedings under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214 providing for domestic
violence, stalking, and sexually oriented offense civil protection orders.” Civ.R. 65.1(A). The
rule specifically states that the provisions of the rule “shall * * * supersede and make
inapplicable in such proceedings the provisions of any other rules of civil procedure to the extent
that such application is inconsistent with other provisions of this rule.” Id. Further, Civ.R.
65.1(3)(c)(iv) explicitly states “[a] court’s adoption, modification, or rejection of a magistrate’s
denial or granting of a protection order after a full hearing under this division does not constitute
a judgment or interim order under Civ.R. 53(D)(4)(e) and is not subject to the requirements of
that rule.” As such, the procedures contained in Civ.R. 65.1 govern the issuance of civil stalking
protection orders, and such orders are not subject to the requirements set forth in Civ.R. 53.
{¶9} Here, the text of the trial court’s order denying J.S.’s objection to the magistrate’s
decision regarding the civil stalking protection order shows that the trial court incorrectly
analyzed J.S.’s objection pursuant to the standard contained in Civ.R. 53, rather than Civ.R. 65.1.
The trial court’s order states: 4
Concerning objections, Ohio Rule of Civil Procedure 53(D)(3), in pertinent part states: * * * Specificity of objection. An objection to a magistrate’s decision shall be specific and state with particularity all grounds for objection. The lack of transcript does not prevent counsel from filing a specific objection which is required by rule. Because the objection is not specific, the objection is overruled.
(Emphasis added.) Civ.R. 53 and Civ.R. 65.1 contain different standards for objections. Civ.R.
53 states: “[a]n objection to a magistrate’s decision shall be specific and state with particularity
all grounds for objection.” Civ.R. 65.1(3)(d)(iii) states: “[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.”
{¶10} This Court previously found harmless error where the trial court cited to Civ.R.
53 but Civ.R. 65.1 was the appropriate standard. T.M. v. R.H., 9th Dist. Summit No. 29556,
2020-Ohio-3013, ¶ 11. However, the present case is distinguishable from T.M. because, in T.M.,
although the trial court incorrectly cited to Civ.R. 53, it nonetheless applied the correct standard
found in Civ.R. 65.1. Id. In this case, there is no evidence in this record to suggest the trial court
actually applied the correct standard, as found in Civ.R. 65.1.
The trial court also erred in denying J.S. the opportunity to file a memorandum in support of his objection.
{¶11} J.S. filed his objection on November 24, 2020. In response to the filing of the
objection, the trial court issued an order on November 25, 2020, instructing J.S. to submit a
deposit to the court reporter for preparation of a transcript. The order also contained the
following language:
After the transcript of hearing is filed, [J.S.] shall have ten (10) days from the date of filing to submit a memorandum; opposing counsel shall have ten (10) days 5
from the date objecting party’s counsel filed his brief to respond. The Court will then rule on the objections without an oral hearing.
(Emphasis added.) Subsequently, the transcript was filed on December 14, 2020. Under the
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[Cite as K.T. v. J.S., 2021-Ohio-4350.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
K. T. C.A. No. 21AP0004
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE J. S. COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 2020 CVC-C 000278
DECISION AND JOURNAL ENTRY
Dated: December 13, 2021
SUTTON, Judge.
{¶1} Appellant-Respondent J.S. appeals from the judgment of the Wayne County Court
of Common Pleas. This Court reverses and remands for further consideration.
I.
{¶2} On August 27, 2020, Appellee-Petitioner K.T. filed a petition for a civil stalking
protection order against her neighbor, J.S., pursuant to R.C. 2903.214. Under this petition, K.T.
sought protection for both herself and her three children. The trial court granted K.T.’s request
for an ex parte protection order and set the matter for a full hearing.
{¶3} After two continuances were granted at J.S.’s request, a full hearing on K.T.’s
petition was held on November 13, 2020, before a magistrate. Both parties appeared and were
represented by counsel. The magistrate issued a decision on November 18, 2020, concluding
that as a result of the testimony and evidence presented at the full hearing, “the preponderance of
the evidence mandates a civil stalking protection [order] to ensure the safety and protection of 2
[K.T.] and her minor children.” The trial court reviewed and adopted the magistrate’s decision
the same day.
{¶4} On November 24, 2020, J.S. timely filed an objection to the magistrate’s decision
and the trial court’s adoption of the same. In his objection, J.S. did not state any factual or legal
basis for objecting, but instead indicated that “[u]pon completion of the requested transcript of
November 13, 2020 * * *, counsel for [J.S.] will file a more specific objection.” The following
day, the trial court issued an order requiring J.S. to submit a deposit to the court reporter for
preparation of the transcript of the November 13, 2020 hearing. In that order, the trial court also
informed J.S. that after the filing of the transcript, he would have ten days to submit a
memorandum in support of his objection. The order also indicated that K.T. would have ten
days to respond to J.S.’s objection, and then the court would rule on J.S.’s objection without a
hearing.
{¶5} On December 14, 2020, a copy of the transcript of the November 13, 2020
hearing was filed with the trial court. Eight days later, on December 22, 2020, the trial court
overruled J.S.’s objection on the basis that J.S. failed to make any specific objection pursuant to
Civ.R. 53. In so doing, the trial court stated “[t]he lack of a transcript does not prevent counsel
from filing a specific objection which is required by the rule. Because the objection is not
specific, the objection is overruled.” The trial court did not address why it ruled on J.S.’s
objection two days prematurely.
{¶6} J.S. timely appealed asserting four assignments of error for review. This Court
elects to begin with the third assignment of error as it is dispositive of this appeal. 3
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, ABUSING ITS DISCRETION WHEN IT UPHELD THE MAGISTRATE’S DECISION AND DISMISSED [J.S.]’S OBJECTION WITHOUT ALLOWING HIM TO SUPPLEMENT WITH THE TRANSCRIPT, WITHOUT HAVING REVIEWED THE TRANSCRIPT, AND NOT CONDUCTING AN INDEPENDENT REVIEW OF THE RECORD.
{¶7} In his third assignment of error, J.S. argues that the trial court erred in overruling
his objection. For the following reasons, we agree.
The trial court applied the incorrect standard in denying J.S.’s objection.
{¶8} Civ.R. 65.1 of the Ohio Rules of Civil Procedure applies to “special statutory
proceedings under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214 providing for domestic
violence, stalking, and sexually oriented offense civil protection orders.” Civ.R. 65.1(A). The
rule specifically states that the provisions of the rule “shall * * * supersede and make
inapplicable in such proceedings the provisions of any other rules of civil procedure to the extent
that such application is inconsistent with other provisions of this rule.” Id. Further, Civ.R.
65.1(3)(c)(iv) explicitly states “[a] court’s adoption, modification, or rejection of a magistrate’s
denial or granting of a protection order after a full hearing under this division does not constitute
a judgment or interim order under Civ.R. 53(D)(4)(e) and is not subject to the requirements of
that rule.” As such, the procedures contained in Civ.R. 65.1 govern the issuance of civil stalking
protection orders, and such orders are not subject to the requirements set forth in Civ.R. 53.
{¶9} Here, the text of the trial court’s order denying J.S.’s objection to the magistrate’s
decision regarding the civil stalking protection order shows that the trial court incorrectly
analyzed J.S.’s objection pursuant to the standard contained in Civ.R. 53, rather than Civ.R. 65.1.
The trial court’s order states: 4
Concerning objections, Ohio Rule of Civil Procedure 53(D)(3), in pertinent part states: * * * Specificity of objection. An objection to a magistrate’s decision shall be specific and state with particularity all grounds for objection. The lack of transcript does not prevent counsel from filing a specific objection which is required by rule. Because the objection is not specific, the objection is overruled.
(Emphasis added.) Civ.R. 53 and Civ.R. 65.1 contain different standards for objections. Civ.R.
53 states: “[a]n objection to a magistrate’s decision shall be specific and state with particularity
all grounds for objection.” Civ.R. 65.1(3)(d)(iii) states: “[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.”
{¶10} This Court previously found harmless error where the trial court cited to Civ.R.
53 but Civ.R. 65.1 was the appropriate standard. T.M. v. R.H., 9th Dist. Summit No. 29556,
2020-Ohio-3013, ¶ 11. However, the present case is distinguishable from T.M. because, in T.M.,
although the trial court incorrectly cited to Civ.R. 53, it nonetheless applied the correct standard
found in Civ.R. 65.1. Id. In this case, there is no evidence in this record to suggest the trial court
actually applied the correct standard, as found in Civ.R. 65.1.
The trial court also erred in denying J.S. the opportunity to file a memorandum in support of his objection.
{¶11} J.S. filed his objection on November 24, 2020. In response to the filing of the
objection, the trial court issued an order on November 25, 2020, instructing J.S. to submit a
deposit to the court reporter for preparation of a transcript. The order also contained the
following language:
After the transcript of hearing is filed, [J.S.] shall have ten (10) days from the date of filing to submit a memorandum; opposing counsel shall have ten (10) days 5
from the date objecting party’s counsel filed his brief to respond. The Court will then rule on the objections without an oral hearing.
(Emphasis added.) Subsequently, the transcript was filed on December 14, 2020. Under the
terms of the trial court’s own order, J.S. had until December 24, 2020, to file a memorandum in
support of his objection. For reasons unknown, the trial court proceeded to rule on J.S.’s
objection prematurely, issuing an order denying J.S.’s objection on December 22, 2020. Thus,
J.S. was denied the opportunity to file a memorandum in support of his objection within ten days
as provided for in the trial court’s own order. As such, the trial court erred in rendering a
premature judgment on J.S.’s objection. See Ohio Bar Liab. Ins. Co. v. Hunt, 2d Dist.
Montgomery Nos. 19320, 19321, 2003-Ohio-1381, ¶ 35-36 (Trial court was required to refrain
from ruling until the end of court-ordered time period.). See also Bank of New York v. Brunson,
9th Dist. Summit No. 25118, 2010-Ohio-3978, ¶ 10 (Premature ruling by trial court denied
appellant opportunity to be heard.); U.S. Bank National Association v. Harper, 9th Dist. Lorain
No. 19CA011499, 2020-Ohio-4674, ¶ 29 (Trial court erred in prematurely ruling without giving
appellant reasonable opportunity to respond.).
{¶12} We note that this Court is not taking a position as to the sufficiency of J.S.’s
objection. But, because the trial court failed to analyze J.S.’s objection under the appropriate
standard set forth in Civ.R. 65.1 and also prematurely ruled on J.S.’s objection in contravention
to its own order, J.S.’s third assignment of error is well taken.
{¶13} Accordingly, J.S.’s third assignment of error is sustained.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING A CIVIL PROTECTION ORDER AGAINST [J.S.] WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN SUCH A DECISION. 6
ASSIGNMENT OF ERROR II
THE GRANTING OF A CIVIL PROTECTION ORDER AGAINST [J.S.] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING RELIEF TO [K.T.] WHO INSTIGATED THE INCIDENT WITH [J.S.].
{¶14} In his first, second, and fourth assignments of error, J.S. argues that the trial
court’s grant of the protection order to K.T. is both based on insufficient evidence and against the
manifest weight of the evidence. Because this matter must be remanded for further proceedings,
the arguments presented in the first, second, and fourth assignments of error are premature. We,
therefore, decline to address them.
III.
{¶15} J.S.’s third assignment of error is sustained. Because his first, second, and fourth
assignments of error are premature, this Court declines to address them. The judgment of the
Wayne County Court of Common Pleas is reversed, and the cause is remanded for further
proceedings consistent with this decision.
Judgment reversed, and cause remanded.
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 Wayne, 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. 7
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.
No costs are taxed.
BETTY SUTTON FOR THE COURT
HENSAL, P. J. CALLAHAN, J. CONCUR.
APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
MICHAEL G. BUYTENDYK, Attorney at Law, for Appellee.