Whatley v. Canales

2020 Ohio 213

• Court: Ohio Court of Appeals
• Decided: January 24, 2020
• Docket: 28382
• Status: Published

Opinion

[Cite as Whatley v. Canales, 2020-Ohio-213.]

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

MARICA WHATLEY : : Plaintiff-Appellant : Appellate Case No. 28382 : v. : Trial Court Case No. 2019-CV-1391 : JERMEL CANALES : (Civil Appeal from : Common Pleas Court) Defendant-Appellee : :

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OPINION

Rendered on the 24th day of January, 2020.

MARICA WHATLEY, 214 Glenside Court, Trotwood, Ohio 45426 Plaintiff-Appellant, Pro Se

JERMEL CANALES, 214 Glenside Court, Trotwood, Ohio 45426 Defendant-Appellee, Pro Se

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WELBAUM, J. -2-

{¶ 1} In this case, Appellant, Marica Whatley, appeals pro se from a judgment of

the trial court denying her petition for a civil stalking protection order against Appellee,

Jermel Canales. However, Whatley failed to file objections to the trial court’s adoption

of the magistrate’s decision as required by Civ.R. 65.1(G). The judgment of the trial

court, therefore, will be affirmed.

I. Facts and Course of Proceedings

{¶ 2} On April 1, 2019, Whatley filed a petition for a civil stalking protection order

or civil sexually oriented offense order (“CSPO”) against Canales, who is the live-in

boyfriend of Whatley’s daughter. Whatley’s petition alleged that Canales had raped her

(Whatley), had stolen from her, and had broken her household objects. Whatley waived

an ex parte order, and the case was set for a full evidentiary hearing to be held on April

9, 2019.

{¶ 3} Both parties appeared at the hearing pro se, and the magistrate heard

testimony from each party. Whatley testified to various ways in which Canales had

harassed and had stolen from her. On the other hand, Canales testified that the

allegations were untrue, that Whatley was bipolar, and that she had not been taking her

medication. After hearing the evidence, the magistrate issued a decision, concluding

that Whatley failed to establish that Canales had engaged in two or more incidents that

would cause Whatley to reasonably fear physical harm. As a result, the CSPO petition

was denied.

{¶ 4} On April 16, 2019, the trial court found no errors of law or defects on the face

of the magistrate’s decision, adopted it, and entered judgment denying the petition for a -3-

CSPO. Whatley did not file objections to the trial court’s decision. Instead, on May 6,

2019, she filed a notice of appeal from the court’s judgment.

{¶ 5} Whatley has filed a pro se appellate brief, but has not asserted any

assignments of error. This is contrary to the requirements in App.R. 16(A)(3) and (6).

Rather than complying with the rule, Whatley’s brief simply reiterates allegations she

made in the CSPO petition and adds some factual allegations that were not raised during

the hearing. Canales has also filed a pro se brief, and this matter is ready for resolution.

II. Discussion

{¶ 6} Under Civ.R. 65.1(F)(3)(c)(ii), which applies to petitions for CSPOs, “[w]hen

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.” The court’s adoption of a magistrate’s denial “of a protection order after a full

hearing shall be effective when signed by the court and filed with the clerk.” Civ.R.

65.1(F)(3)(c)(v).

{¶ 7} “A magistrate's decision to grant or deny a [CSPO] after a full hearing is not

subject to the requirements in Civ.R. 53(D)(2) or (3), which govern procedures for moving

to set aside a magistrate's order and objecting to a magistrate's decision.” Runkle v.

Stewart, 2d Dist. Miami No. 2018-CA-27, 2019-Ohio-2356, ¶ 7, citing Civ.R. 65.1(F)(3)(b).

Instead, Civ.R. 65.1(G) provides that “a trial court's decision to adopt a magistrate's

decision that grants or denies a [CSPO] is a final, appealable order. However, pursuant

to a July 1, 2016 amendment to Civ.R. 65.1, a party must timely file objections to such an -4-

order prior to filing an appeal.” Id. at ¶ 8.

{¶ 8} Before the rule was amended in July 2016, parties could either immediately

appeal a court’s adoption of the magistrate’s decision or file timely objections in the trial

court. Id. at ¶ 8, fn. 1. As amended, however, Civ.R. 65.1(G) provides that:

Notwithstanding the provisions of any other rule, an order entered by the

court under division (F)(3)(c) or division (F)(3)(e) of this rule is a final,

appealable order. However, 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.

{¶ 9} According to the record, Whatley failed to file objections to the trial court’s

adoption of the magistrate’s decision. As a result, she cannot now challenge the trial

court’s decision. Runkle at ¶ 10, citing J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032,

2017-Ohio-7507, ¶ 22. See also Anderson v. Gregory, 2d Dist. Montgomery No. 28277,

2019-Ohio-2346, ¶ 8-9.

III. Conclusion

{¶ 10} Having found that Whatley failed to file objections to the trial court's adoption

of the magistrate's decision denying a CSPO, as mandated by Civ.R. 65.1(G), the

judgment of the trial court is affirmed.

DONOVAN, J. and HALL, J., concur. -5-

Copies sent to:

Marica Whatley Jermel Canales Hon. Mary E. Montgomery