RS v. BA

2023 Ohio 3364

• Court: Ohio Court of Appeals
• Decided: September 21, 2023
• Docket: 112303
• Status: Published

Opinion

[Cite as RS v. BA, 2023-Ohio-3364.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

R.S., :

Plaintiff-Appellee, : No. 112303

v. :

B.A., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 21, 2023

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-22-969175

Appearances:

Antonio S. Nicholson, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant, B.A., appeals the trial court’s order overruling

his objections to the magistrate’s order, adopted by the trial court, that granted a petition for a civil protection order in favor of R.S. Because the trial court did not

abuse its discretion by overruling B.A.’s objections, the judgment is affirmed.

On September 26, 2022, R.S. filed a petition for a civil protection

order against B.A. pursuant to R.C. 2903.214. The trial court issued an ex parte

temporary protection order and referred the case to a magistrate for hearing. On

October 13, 2022, R.S. appeared with counsel and B.A. appeared pro se for a hearing

on the petition. R.S. testified on direct examination. At the conclusion of R.S.’s

direct testimony, but prior to cross-examination, B.A. asked for a continuance of the

hearing in order to obtain counsel. The magistrate granted the motion and

continued the hearing for 25 days until November 7, 2022.

On November 7, 2022, R.S. appeared with counsel for the hearing,

but neither B.A. nor counsel appeared on his behalf. The magistrate concluded the

hearing and issued a decision granting the petition. On November 10, 2022, the trial

court adopted the magistrate’s decision granting the civil protection order.

On November 22, 2022, B.A., through counsel, filed a motion to set

aside the magistrate’s order, a motion to reconsider, and an objection to the

magistrate’s order awarding the civil protection order. These filings are similar in

substance and each state that B.A.’s counsel did not enter an appearance in the case

prior to the continued hearing date, B.A.’s counsel had a conflict on the date of the

continued hearing, and B.A.’s counsel advised B.A. to not appear at the hearing. In

response to the filings, R.S. argued that B.A.’s counsel did not seek a continuance prior to the hearing date and that B.A. filed an untimely motion to set aside the

magistrate’s order.

On December 9, 2022, the trial court issued three journal entries

resolving B.A.’s November 22, 2022 filings.1 As to the objection filed to the

magistrate’s order, pursuant to Civ.R. 53(D)(3), the trial court found that B.A. “made

the conscious decision to neither appear at the hearing nor move for a continuance

of the hearing.” It determined that the objection was “without a reasonable basis”

and overruled the objection.

B.A. raises one assignment of error that reads:

The trial court abused its discretion when it overruled appellant’s objection to [the] magistrate’s decision.

B.A. argues the trial court abused its discretion because the decision “constituted a

failure to exercise sound, reasonable and legal decision making, specifically when

the [trial court] opined that the objection to the magistrate’s decision was without a

reasonable basis.” R.S. did not file a brief in this appeal.

Proceedings conducted pursuant to R.C. 2903.214 are subject to

Civ.R. 65.1. M.D. v. M.D., 2018-Ohio-4218, 121 N.E.3d 819, ¶ 51 (8th Dist.). “A ‘trial

court's ruling on objections to a magistrate's decision will not be reversed absent an

abuse of discretion.’” C.A.P. v. M.D.P., 8th Dist. Cuyahoga No. 109882,

1 The trial court denied B.A.’s motion to reconsider finding the motion to be a procedural

nullity and denied B.A.’s motion to set aside the order finding it to be untimely filed. B.A. did not appeal these judgments. 2021-Ohio-3030, ¶ 22, quoting In re M.I.S., 8th Dist. Cuyahoga No. 98138, 2012-

Ohio-5178, ¶ 11. A court abuses its discretion when it “exercises its judgment in an

unwarranted way regarding a matter over which it has discretionary authority.”

State v. McFarland, 8th Dist. Cuyahoga No. 111390, 2022-Ohio-4638, ¶ 20, citing

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

Further, an abuse of discretion implies that the court's attitude is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

In Durastanti v. Durastanti, 1st Dist. Hamilton No. C-190655, 2020-

Ohio-4687, ¶ 15, the court noted Civ.R. 65.1(F)(3)(d)(iii) provides that a party

objecting to the trial court’s adoption of a magistrate’s order has the burden to

demonstrate

that an error of law or other defect is evident on the face of the order, or [2] that the credible evidence of record is insufficient to support the granting or denial of the protection order, or [3] that the magistrate abused the magistrate's discretion in including or failing to include specific terms in the protection order.

In his objections to the trial court, B.A. does not argue that an error

of law occurred, that the magistrate’s decision is defective on its face, that the

evidence was insufficient to grant the order, or that the magistrate failed to include

or omitted any specific term. Instead, B.A. argues he had a valid excuse for failing

to appear at the hearing — that his attorney did not appear or seek a continuance. In essence, B.A. has asked that the order be reversed and a second continuance of

the hearing be granted.

The grant or denial of a continuance is a matter within the discretion

of the trial court. C.M.R. v. B.T.B.S., 8th Dist. Cuyahoga No. 111959,

2023-Ohio-1973, ¶ 11, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078

(1981). B.A. had already been granted a continuance of the hearing, but did not

contact the court or appear on the scheduled date. Because B.A. had already been

granted a continuance in the matter and failed to contact the court or appear, we

cannot say the trial court was unreasonable, arbitrary, or unconscionable by

overruling B.A.’s objection.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas 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.

______________________________________ MICHELLE J. SHEEHAN, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EILEEN A. GALLAGHER, J., CONCUR