Nelson v. Koester

2011 Ohio 5506

• Court: Ohio Court of Appeals
• Decided: October 27, 2011
• Docket: 96723
• Status: Published

Opinion

[Cite as Nelson v. Koester, 2011-Ohio-5506.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96723

RANDALL NELSON PLAINTIFF-APPELLANT

vs.

CHRISTINA R. KOESTER

DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-335134

BEFORE: Rocco, J., Boyle, P.J., and Keough, J.

RELEASED AND JOURNALIZED: October 27, 2011 2

FOR APPELLANT

Randall J. Nelson, pro se 803 Tarra Oaks Drive Findlay, Ohio 45840

FOR APPELLEE

Christina R. Koester, pro se 155-1/2 Burger Street Toledo, Ohio 43605

KENNETH A. ROCCO, J.:

{¶ 1} In this appeal, brought upon the accelerated calendar pursuant to App.R.

11.1 and Loc.App.R. 11.1, plaintiff-appellant, Randall Nelson (“appellant”), appeals the

trial court’s decision overruling his objections and adopting the magistrate’s decision

denying his petition for a domestic violence civil protection order. For the following

reasons, we affirm.

{¶ 2} On February 3, 2011, appellant filed a petition for a domestic violence civil

protection order against defendant-appellee, Christina Koester (“appellee”). After the

court denied appellant an ex parte temporary protection order, a hearing was held on

February 17, 2011. The appellant appeared pro se and appellee failed to appear despite

notice. 3

{¶ 3} After the hearing, the magistrate issued her decision on February 22, 2011,

denying appellant’s petition for a domestic violence civil protection order. On March 2,

2011, appellant filed objections to the magistrate’s decision and submitted an affidavit in

lieu of a transcript of proceedings. On April 7, 2011, the trial court issued a judgment

entry overruling the appellant’s objections and adopting the magistrate’s decision in its

entirety.

{¶ 4} Appellant now appeals and presents the following assignment of error for

our review:

{¶ 5} “The trial court erred when it did not take into consideration the

affidavit that the petitioner filed in lieu of the transcript of the full-hearing when he

made his objections to the magistrates [sic] decision.”

{¶ 6} In his sole assignment of error, appellant argues that the trial court erred in

failing to consider his affidavit in lieu of a transcript when overruling his objections and

adopting the magistrate’s decision. We disagree.

{¶ 7} Civ.R. 53(D)(3)(b)(iii) provides that objections to a magistrate’s factual

finding “shall be supported by a transcript of all the evidence submitted to the magistrate

relevant to that finding or an affidavit of that evidence if a transcript is not available.”

The transcript of appellant’s hearing was unavailable for purposes of the rule because

appellant claims to be indigent and unable to afford it. See Gumins v. Ohio Dept. of

Rehab. & Corr., Franklin App. No. 10AP–941, 2011-Ohio-3314, ¶10. Therefore, Civ.R. 4

53(D)(3)(b)(iii) mandates that appellant’s objections be supported by an affidavit of

evidence. “An affidavit under that rule must contain a description of all the relevant

evidence, not just the evidence deemed relevant by the party objecting to the magistrate’s

findings.” Gumins, supra at ¶13.

{¶ 8} In this case, appellant’s affidavit was not sufficient under Civ.R.

53(D)(3)(b)(iii). The affidavit presented only the evidence appellant considered

important even though the rule requires that the affidavit describe all the relevant

evidence presented at the hearing. When comparing appellant’s affidavit with the

magistrate’s factual findings, it is apparent the affidavit omits evidence. See Gumins,

supra at ¶13. Accordingly, appellant’s affidavit fails to meet the requirements of Civ.R.

53 and could properly be rejected as a basis of support for appellant’s objections.

Nonetheless, there is nothing in appellant’s affidavit that would have prompted the

magistrate to issue a civil protection order. Appellant’s sole assignment of error is

overruled and the judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. 5

__________________________________ KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR