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Palmer v. Abraham

Court of Appeals of Ohio, Sixth District

July 12, 2013

Tina Palmer Appellee
v.
Joseph Abraham Appellant

Trial Court No. 10CV582H

Christopher Marcinko for appellant.

DECISION AND JUDGMENT

SINGER, P. J.

{¶ 1} Appellant appeals the judgment of the Ottawa County Court of Common Pleas overruling his objections and adopting a magistrate's decision to grant a civil stalking protective order. Appellee has not responded. Because we conclude that the trial court acted within its discretion when it overruled appellant's objections to the magistrate's decision, we affirm.

{¶ 2} On August 20, 2010, appellee, Tina Palmer, filed a petition seeking the issuance of a civil stalking protection order against her neighbor, appellant Joseph Abraham. Appellee alleged that appellant and his wife incessantly videotaped her family, including recording her 13-year-old boy and three and five year-old neighbor children jumping on a trampoline in the yard. According to appellee, appellant also accused her family of being drug dealers, made false statements about them to the dog warden, called them "white trash" and endangered their son on the road in front of the parties' houses. Appellee reported that appellant's behavior engendered fear and anxiety in her family, causing the children to lose friends, and appellee to lose sleep.

{¶ 3} On August 23, 2010, the trial court issued an ex parte protective order, prohibiting appellant from having contact with appellee's family pending a hearing on the petition before a magistrate. The hearing was originally set for August 30, 2010. The matter, however, was continued, with the hearing eventually commencing on November 16, 2010, with additional testimony on January 25 and March 21, 2011.

{¶ 4} After the hearing, the magistrate issued a decision, finding sufficient evidence that appellant had engaged in a pattern of conduct sufficient to cause mental distress to appellee "to the point that she requires medication." The magistrate extended the ex parte order to a full civil stalking protection order for a period of five years. On April 13, 2011, appellant filed objections to the magistrate's decision, complaining that the form of the order did not comply with the civil rules and asserting that appellant's acts did not amount to menacing by stalking and, therefore, could not be the basis for issuance of a civil protection order.

{¶ 5} On November 11, 2011, the trial court overruled appellant's objections, concluding that appellant had shown no prejudice from the magistrate's failure to follow Civ.R. 53(D)(3)(iii). Moreover, the court found the magistrate's decision supported in the evidence and law. The court adopted the magistrate's decision. Appellant appealed this judgment, but this court dismissed the appeal because the judgment was not in compliance with Civ.R. 54(E). On remand, the court complied with the rule and this appeal followed.

{¶ 6} Appellant sets forth the following two assignments of error:

I. The magistrate in this matter erred in preparing a non-conforming magistrate's decision.
II. The Court abused its discretion and erred in unreasonably attributing the alleged mental distress of the Petitioner to any actionable conduct on the part of respondent, when the manifest weight of the evidence demonstrates no conduct which could reasonably be perceived as constituting Menacing By Stalking in the context of these proceedings. The lack of actionable conduct by the petitioner makes the issuance of a CPO against the manifest weight of the evidence.

Civ.R. 53(D)

{¶ 7} In his first assignment of error, appellant complains that the magistrate's decision fails to comply with the mandatory instructions of Civ.R. 53(D)(3)(a)(iii) that a magistrate's decision, "shall 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 * * *."

{¶ 8} Appellant is correct, the magistrate's decision did not include the mandated caveat. Nonetheless, the trial court is correct; the absence of this warning did not operate to appellant's prejudice as he was not procedurally barred from assigning error. An appeals court may only reverse the decision of a trial court if it determines that the decision operated to the prejudice of the appellant. App.R. 12(B). Since the omission of ...


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